Crimes (Countering Foreign Interference) Amendment Bill

We come first to the Crimes (Countering Foreign Interference) Amendment Bill. We begin with the debate on Part 1. This is the debate on clauses 3 to 15, “Amendments to the Crimes Act 1961”. The question is that Part 1 stand part.

Thank you, Mr Chair. I want to start by going clause to clause, because there are quite a few things to unpack. I want to start with clause 4, which inserts new section 2A, “Meaning of person who owes allegiance to the Sovereign in right of New Zealand”.

One of things we had a question on—and it’s one of the things we’ve been trying to tease out in the Justice Committee—is the broader idea of what it means when someone owes allegiance to a particular location. This came up when we were talking about someone, for example, who may not have the citizenship of a particular country but at the same time has whakapapa to a particular country and as part of the whakapapa may experience or may express certain intentions or feelings, and whether they are going to be captured in this legislation.

It is something that is complex, considering we heard in the previous bills that we do have very diverse communities here in Aotearoa, and the Greens have some concerns around the definition we see here, for example, in new section 2A(3)(c), because I think it takes a very pure form of definition that doesn’t take in broader complexities of the whakapapa of the person, or the heritage or the ancestry of the person. I just want to check with the Minister of Justice, to start off with, on some of that consideration, as he develops this bill and the intentions behind it.

This legislation is not changing our citizenship laws or making amendments in any of those areas. What it does do is create new offences relating to foreign interference in the Crimes Act. Just by way of introduction, it’s a bill that would create an offence if a person engages in covert, deceptive, coercive, or corruptive conduct on behalf of a foreign power to intentionally compromise a protected New Zealand interest, or is reckless as to whether their conduct is likely to compromise such an interest, or commits an imprisonable offence to intentionally benefit a foreign power, or is reckless as to whether committing that offence is likely to provide such a benefit. That’s the primary focus.

What we’re trying to do here is to deal with the reality. A lot of people would seek to deny that there is a problem, but the Government is firmly of the view that foreign interference is something that we are concerned about as a nation. We’re updating our legislation to be clear about that. What we’re not doing is changing our citizenship laws.

Thank you, Mr Chair. I’ll pick up where my friend and colleague Lawrence Xu-Nan left off, on clause 4, inserting new section 2A, which does touch on the slightly arcane subject of the meaning of a person who “owes allegiance to the Sovereign in right of New Zealand”. This is, basically, a loyalty question in the old-fashioned sense of the word—that is to say, for someone who owes allegiance to the Crown; under this legislation, it is a criminal offence to work against the interests of the Crown.

Whilst the Minister of Justice noted that this doesn’t change immigration law—I accept that—there is an interface between immigration status and who owes allegiance to the Crown. One thing that is clear here is that anyone who is a citizen owes allegiance to the Crown, but, from the legislation, it’s not immediately clear to me, and I’d appreciate the Minister’s elucidation—I see he’s flying solo tonight, which is probably a good thing—about other immigration statuses. In new section 2A(3)(c), it says, “[any person] not bound by the oath of allegiance:”. Essentially, you can’t be found guilty of this offence. There is a series of categories of people. One would be a person on a resident’s visa. Is a person on a resident’s visa bound by the oath of allegiance? Is a person on a worker’s visa bound by the oath of allegiance?

I think, when we get down to the categories where it’s clearly not the case—for example, someone on a visitor or tourist visa, who, if they engaged in what are, essentially, subversive activities, would not be criminally responsible for foreign interference, because they’re not bound by the oath of allegiance. But the one a little bit higher up from the tourist and visitor visas—workers, Recognised Seasonal Employers workers, or people on perhaps a two- or three-year worker’s visa—if they engage in activities which are there to benefit a foreign State by deception, which is at the root of this, as we’ll come to, would a person on a worker’s visa or a resident’s visa be subject to this legislation, or are they persons who owe allegiance to the Sovereign of New Zealand?

It would be really appreciated if the Minister could give some elucidation there, because, ultimately, I think we accept that if people come into New Zealand and they’re on a pathway to residence—ultimately, a pathway to citizenship, which is the highest status, including residency—we expect them to be loyal, ultimately, because this is what this legislation is at root about, to New Zealand. If they come from a foreign country, wherever that might be, which has different interests and wants to undermine New Zealand’s economic or security interests and they want to, I don’t know, pass information back to the other State or to engage in conduct that undermines the interests of New Zealand, as workers or with an immigration status other than that of citizen, ultimately the question is this: are they captured by this?

If they’re not, there’s quite a hole here. Look, if you’re a spy—let’s say what this is about—and you’re a resident but not a citizen, you’ve got a free pass; you’ll continue passing information and undermining the interests of New Zealand in the interests of the other State with pretty much impunity. I think it would be really good if the Minister could go through and say, “Here’s where the line is. Here is where you owe allegiance to New Zealand, and here’s where you don’t.” That would be a really helpful elucidation by the Minister.

Thank you, Mr Chair. I have some new and different questions for the Minister of Justice, but they are about the same new section 2A, inserted by clause 4. This is the section about who owes allegiance. During the course of submissions, the New Zealand Law Society wrote a lot on this section and asked several questions, some of which were addressed by the amended version of the bill, but some weren’t. I just thought I would use the opportunity to get the Minister’s clarification on where he thinks these situations would fall.

The first is: who counts as a person in the context of the Ross Dependency? There are potential difficulties with the reference to persons in New Zealand due to the need to reconcile respective sections in the Crimes Act and the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 definitions. The interaction of the Crimes Act definition of New Zealand with provisions of the other Act is unclear, in my view. Section 2 of the Crimes Act defines New Zealand as including “all waters within the outer limits of the territorial sea of New Zealand (as defined by section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977”, but section 3 of that Act defines the territorial sea as encompassing the sea within 12 nautical miles of a baseline, being the low-water mark along the coast of New Zealand, including the coast of all islands.

The statutes don’t fit together well, and the Law Society made this argument as well: that there is a good argument that the bill enacted in its current form wouldn’t apply to the Ross Dependency. Now, that might entirely be the Minister’s intent, but I think that, at this stage of the House’s work, it’s useful for us to clarify that. The Law Society suggested that, potentially, there could be an amendment here to make it clearer. Similarly, they spoke about how the law would apply to Niue. It’s stated, of course, in section 3 of the Niue Constitution Act that it shall be 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, really, whether the Minister’s view is that that would also mean that people would fall within that sense of allegiance as well.

The other issue that the Law Society spoke about was the statement that the common law would continue to apply rather than specify what the common law is in terms of who owes allegiance and who doesn’t. They particularly pointed to the issue of renouncing citizenship or repudiating allegiance, and, in the Law Society’s view, there would be some merit in actually stepping through—within the statute—who that includes and who it doesn’t. In many ways, it would seem absurd if someone were to validly, and with documentation, renounce their citizenship, and potentially be living overseas as well, but, through some interpretation of the common law, be determined to still fall within one of the people who did continue to owe allegiance.

Another matter that I have been reflecting on since select committee, and I can’t recall that this came up within the Justice Committee itself, is the issue of New Zealanders who are working within foreign embassies and the treatment of them both overseas as well as in New Zealand. Presumably, it would apply to individuals who are staff of other embassies in New Zealand—I know that embassies often attempt to recruit from home countries, but, again, it’s not unusual for administrative staff to be locally recruited. How would the bill, when enacted, apply to them, but also New Zealanders who may be employed in foreign embassies, potentially with dual citizenship, as well? While that feels clear in the context of being within New Zealand, if the Minister could respond to those individuals who are working in embassies outside of New Zealand, I would be grateful.

I’m looking forward to the Minister of Justice’s elucidation of these points, once he gets some advice, obviously. But, look, one of the things that’s really interesting here—because this is the Crimes Act, right? The Crimes (Countering Foreign Interference) Amendment Bill creates a crime and the trigger is that if you’re going to do bad things hurting the interests of New Zealand; the flip side is that to be criminally responsible, you have to owe allegiance to the Sovereign of New Zealand.

Then, in the new section 2A(2), inserted by clause 4, it says, “this section is not an exhaustive code of the law relating to the circumstances in which a person owes allegiance to the Sovereign … of New Zealand;”, so it’s just opened the gate. The thing about criminal law is that you want to be pretty clear about when you’re liable, when you could be charged with a crime, right? A lot of the bill kind of steps through—my previous contribution talked about: well, what about if you’re a resident? What about if you’re a tourist? What about if you’re on a worker’s visa? And so on. There are going to be clear yes or no answers to that.

The question here is: what the hell does it mean to say it’s not an exhaustive code as to whether or not you owe allegiance to the Sovereign of New Zealand? Is there going to be some situation where, to take a recent instance, you are a child of a person who is tangata whenua who has a moral claim to citizenship, and you’re a spy for a foreign State in a foreign country. Does that mean you could conceivably owe allegiance to the Sovereign of New Zealand or, basically, what else? Why do we need a vague, open-ended framework that says, “Here are the circumstances where you do owe allegiance. Here are the circumstances where you don’t, but just for a lack of clarity, that’s not everything. There could be something else, but we’ll let you know that when we get round to it.” That’s ultimately what phrasing like “this section is not an exhaustive code of the law relating to the circumstances in which a person owes allegiance to the Sovereign in right of New Zealand;” means.

You could be a person who might, for whatever reason, hold in high esteem the interests of another State and you might be gleaning information from situations you’re in and secretly passing it on to another State. All of a sudden you land in New Zealand and you say, “Well, I’m not a citizen. I’m not a resident. I’m not even on a worker’s permit.”, but the authorities say, “Ah, but, no, that’s not an exhaustive code. You’re not allowed to glean information in that way, because we think you owe allegiance to the Sovereign in right of New Zealand in some other way.”

It is a concern that we’ve got a criminal statute which kind of harks back to the Star Chamber where you kind of made things up as you went along, where you just said, “We are of the view that it is appropriate in the circumstances kind of ex post facto to impose liability.” I’d be interested in the Minister’s own observations, clearly, on when there might be something which is not captured by the rules in the subsequent parts of the section but nevertheless, someone could owe allegiance because, actually, this is the trigger for liability here and it’s a relatively serious thing, so I’d be interested in the Minister’s observations there.

I can respond to the concerns about who’s in and who’s out by just referring to the bill where it says, in new section 2A(3), inserted by clause 4, “A person who is in New Zealand owes allegiance to the Sovereign in right of New Zealand”—anybody who’s in New Zealand owes allegiance to the Sovereign—“unless 1 or more of the following apply:”. One and two are, essentially, diplomats, and three is a person who’s an enemy alien—i.e., somebody that we’re at war with—and is not a New Zealand citizen and is not bound by the Oath of Allegiance, or a child of such a person.

Everybody who’s here in the country is somebody who owes allegiance to the Sovereign if they’re in the country, unless they’re a diplomat or a person who is an enemy alien. It’s reasonably clearly outlined in the legislation, and I think we’re getting slightly distracted, trying to draw what this legislation here is, which is focused on dealing with foreign interference, which is a real threat that we face, and I don’t think it’s helpful to try and draw into a debate around citizen rights of children of actors in relation to this topic.

Thank you, Mr Chair, and thank you to the Minister of Justice for engaging on this topic, as well. I note the comments made by Vanushi Walters around Niue and the Ross Dependency, and also, as a Cook Islander, I’m interested as well, because Cook Islanders hold New Zealand passports. The Cook Islands and Niue are part of the New Zealand Realm; so, technically, in New Zealand. It would be good for the Minister to draw out exactly what that would mean for Cook Islanders in this instance, because I know that people will be listening with interest as to whether they owe allegiance, and exactly what that means. We have seen in recent events in the Cook Islands where there has been a difference of opinion around the relationship with China, for example, and concerns both in the Islands themselves and here within the Cooks Islands community as well.

The issue of who owes allegiance to whom is an important one, because it poses a lot of questions that actually need specific answers in terms of the allegiance to the Sovereign. What exactly does the Minister mean in this particular case; how does it pertain to Pacific Islanders who are part of the New Zealand Realm; and what will that do in terms of the ability of people in those countries to be able to express a different opinion, to be able to have different relationships with different foreign countries? Whether we like those relationships here in Wellington or not, there are possibilities and ways for them to be able to engage in those relationships.

I think it’s an incredibly important issue around what allegiance to the Sovereign actually looks like, and I do agree with the point made by Dr Duncan Webb about this being not an exhaustive code as well, because I know that people in the Pacific Islands will be worried about whether they fall within that non-exhaustive code as well. These are important questions and it would be good to get some answers from the Minister.

Thank you, Mr Chair. I did have another question in relation to this new section that’s going to be inserted as to whether the Minister of Justice considered the concept of temporary allegiance, which is actually a concept that has deep historical roots. In Blackstone’s Commentaries on the Laws of England, published in 1765, it suggested that allegiance arising from birth in England was inalienable, but that there was also something that was temporary allegiance owed to the King by aliens only while resident in England. That was one argument: that you only owed this allegiance to the King while you were there under, as Dr Webb has suggested, maybe temporary circumstances—that could be expected of you while you were in New Zealand, for example.

The other argument that also has come out of Blackstone’s very early arguments on this historic concept of temporary allegiance is the idea of a ligament of allegiance, in that you might owe allegiance to the Crown, but similarly, the Crown owes obligations to you. Prior to the statute of treason in 1351—when the common law purely applied—there was an argument that was the way in which one should formulate what allegiance is; that you only have that obligation in so far as the Crown is complying with its obligations. If the Crown fails to do so, then those obligations no longer exist, or they may exist in some sort of diminished state.

My first question is, really: whether that was brought into the Minister’s thinking in terms of framing how there might be temporary allegiance obligations of those people who are temporarily in New Zealand, quite rightly? Many of them come with other citizenship obligations, which they don’t derogate from when they come to New Zealand. They may still vote in those elections that are happening overseas as well, and so we should bear in mind those more nuanced ways of understanding allegiance and build them into legislation at the get-go.

The other question I have on this is whether there was consideration for a carve-out or an exemption from liability if there was an officially induced error? This was another proposal that was put forward by one of the submitters where there could be merit in including an officially induced error defence in the section, which would apply where a person has formally sought advice from the New Zealand Government as to whether they owe allegiance to the Crown in the right of New Zealand and they’re advised that they did not. They’ve sought that advice; the advice has come through saying that they’re not, and, subsequently, they’re charged with an offence under these new provisions. It’s almost that reliance defence where one would think that, ordinarily, that person had a reasonable excuse; if they do, then that ought to be written specifically into statute.

I circle back to the Law Society’s point about being very specific about what is and isn’t included here, rather than adopting general language that the common law applies, because we are talking about a serious offence. We are talking about a taint, as well, after someone might be convicted of this offence. It is very important that we get this clear.

Again, I’m just wanting the Minister’s consideration or thoughts or reflections on whether temporary allegiance was considered as a concept; if not, why not? Particularly for those on temporary class visas, and his views about the exception: should it be in there? Does he believe that it falls within the common law scope of what would be excluded if that person relied on advice from the Government or would they otherwise be held to be accountable for breaching the provisions of this new law, even if they had that advice from the Government that they didn’t owe that allegiance?

In relation to the last question about whether we considered views, I’m not sure the extent to which detailed consideration of temporary allegiance was given, but we have certainly not decided to go down that route.

In relation to our friend from the Greens’ reference to “people may be expressing different views”—I think was the phrase he used; I might have got that wrong—from different parts of the Realm, expressing different views. This is not a question of free speech or expressing views; it’s about people who engage in covert, deceptive, coercive, or corruptive conduct for or on behalf of a foreign power to intentionally compromise a protected New Zealand interest, or as reckless as to whether that conduct is likely to compromise an interest. We’re not talking about expressing views. It’s a very different thing indeed.

Thank you, Mr Chair. I do understand where the Minister of Justice’s coming from, and I think that foreign interference is incredibly serious. Even if you’re looking at something that we’ll touch on later, in terms of clause 7—if you’re looking at section 69 of the Crimes Act, particularly new subsection (1B), inserted by clause 7(1), it is punishable by up to 14 years of imprisonment. We understand the severity of it, which is why this new definition that has been introduced—of the meaning of a person who owes allegiance—is particularly important because this is the crux of a lot of what is going to be coming in terms of the rest of the bill, in terms of the actual offence itself.

Now, I know that my colleagues have touched on persons “in New Zealand”. I actually want to focus more on persons “outside of New Zealand”. Understanding that, when we’re looking at new section 2A(4)(a), (b), and (c), inserted by clause 4—certain areas like, for example, (c)(i) and (b) are potentially relatively easily understood, but I want to focus on subsection 4(c)(iii), which is “has family or property in New Zealand that demonstrates an enduring connection to New Zealand.” Now, this section is a new section: section 2A. It comes immediately after section 2 of the Crimes Act, “Interpretation”. Therefore, any words that are coming out of 2A will be leveraged off the interpretation or definition that comes under section 2.

The reason I focus on this section is that, under section 2 of the Crimes Act’s, under “Interpretation”, there is no definition of “family”. How broad is “family”? I understand that potentially the keyword here is “enduring connection”, but just hold on to that thought for the time being. “Family” is not defined in the interpretation section; property is. “Property”, in section 2, is defined as “includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and anything in action and any other right or right or interest”; so “property” has an incredibly broad definition in section 2. If we consider “enduring connection”, who then determines what that enduring connection is and how broad we make it? Is “family” immediate? Is “family” a great-great-great-aunt? Is “family” second cousin twice removed? That “enduring connection” is not clear.

Now, I do want to combine that with what is in new section 2A(4A) and (4B), which is “Interpretation”. It says in (4B) that where it is a question of law, “the prosecutor or the defendant may adduce”—may adduce. In the event of what we’re seeing in terms of defences, does the person need to then be arrested first, stand trial, and then, in this case, is it for the judge or evidence heard by the jury to determine what that enduring connection is? In those kinds of events, how many people are going to be potentially held under the definition of new section 2A(3) of a person who owes allegiance to the Sovereign in right of New Zealand, if they have, like I said, a great-great-aunt or a second cousin twice removed here in Aotearoa New Zealand or property? I see they may have accrued a debt or a parking fine from travels that they’ve done here in New Zealand; potentially, one day, they may want to come back. Is that considered an enduring relationship?

Those are my three questions. What is the definition of “family”—four questions, sorry. What is the definition of “family”, definition of “property”, definition of “enduring connection”, and does it mean that the judge or evidence heard by a jury will need to determine that after the person has been arrested?

Thank you, Mr Chair. Just moving on to clause 7, which inserts new section 69(1A). This is quite interesting because it’s actually not strictly about foreign interference; it’s about an allied series of offences, which are kind of treason and mutiny. But I have a quite specific question here, because the new subsection (1A) talks about “A person who owes allegiance to the 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, by any person not owing allegiance to the Sovereign … New Zealand … any act which, if done … by a person owing such allegiance, would be any of the crimes mentioned in subsection (1).” Subsection (1) mentions, amongst other things, treason and mutiny. So, basically, you can’t find someone who doesn’t owe allegiance and then use them as your tool to commit the crimes of mutiny.

Then, new subsection (1B) says, “A person who commits an offence against subsection (1A) is liable to imprisonment for a term not exceeding 14 years.” Well, there’s a couple of things in there. Firstly, if you look at the Crimes Act, which we’ve got to remember, Minister, was drafted in 1961, and a few clauses haven’t—it doesn’t look like they’ve been reviewed since then, because “mutiny” includes some strange language. Mutiny is: endeavouring at any time to seduce any person serving in the New Zealand forces from his or her duty. So a strange use of language there, but, essentially, seeking to induce someone not to do their duty, to breach their duty as a member of the armed forces. But the interesting thing is this: the penalty for inciting to mutiny—that’s section 77 of the Crimes Act—is 10 years. The penalty for being a party to inducing someone else to do that is 14 years.

Now, usually being a party, that is to say conspiring or, you know—what’s the other word? You’ll know, Arena Williams. It’s usually a lesser offence. How can it be more serious to incite an offence than to commit an offence? You get 14 years for inciting an offence, but you get 10 years for doing the offence itself. It makes no sense. If you could explain to me why inciting mutiny is 14 years in prison, but being mutinous is 10 years in prison? That would be a really handy elucidation.

I’ve got a lot more to go, because this is a very difficult piece of legislation; it’s very complex. I’ll come to further “[incitement], counsels, or attempts to procure”, in new subsection 69(2A) at a later time. But if the Minister of Justice would be kind enough to respond to that, that would be very handy.

At the risk of leaving the House in suspense, the time has come for me to report progress.

Progress to be reported.

House resumed.