Crimes (Countering Foreign Interference) Amendment Bill

Thank you, Madam Speaker. I present a legislative statement on the Crimes (Countering Foreign Interference) Amendment Bill.

DEPUTY SPEAKER: That legislative statement is published under the authority of the House and can be found on the Parliament website.

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

This bill is designed to strengthen New Zealand’s criminal law to support a justice response to foreign investment and espionage activity targeting this country. It represents the Government’s commitment to restoring law and order, and protects the safety, security, and democratic freedoms of New Zealand. The bill delivers on our quarter three action plan commitment to criminalise foreign interference and strengthen espionage offences.

Let me be clear: foreign investment is not transparent State-to-State engagement or international cooperation. It’s not the legitimate community, cultural, and business outreach that all embassies engage in and promote in their efforts to promote their national interest. Foreign investment is activity that is intended to deceive, corrupt, or coerce New Zealanders in order to unduly influence, disrupt, or subvert our national interests. Foreign investment—

Hon Dr Deborah Russell: It’s interference, not investment—interference.

Hon PAUL GOLDSMITH: —interference from any source, obviously, is—what did I say?

Cameron Brewer: Interference.

Hon PAUL GOLDSMITH: Interference.

Hon Dr Duncan Webb: It’s different—they’re different things, Paul.

Hon PAUL GOLDSMITH: Did I say foreign investment? I meant foreign interference—interference.

DEPUTY SPEAKER: It’s a very important distinction.

Hon PAUL GOLDSMITH: Foreign interference from any source is very much not acceptable, but we are welcoming of foreign investment, and I want to make that absolutely clear to this House.

Hon Phil Twyford: No, it’s in Hansard now.

DEPUTY SPEAKER: OK, I think we’ve cleared that one up now. We’ll carry on with Mr Goldsmith’s speech.

Hon PAUL GOLDSMITH: To strengthen our resilience to this threat, the Crimes (Countering Foreign Interference) Amendment Bill makes changes to the Crimes Act 1961 to introduce new offences that specifically criminalise foreign interference and update existing offences to better hold people to account for disclosing information that’s likely to prejudice New Zealand’s security or defence. The measures contained in this bill are country-neutral and apply to anyone undertaking or supporting foreign State - sponsored interference against our country. By providing a better means of investigating and holding to account people that mean to do us harm, the bill will help to safeguard New Zealand’s sovereignty, the confidence of Government information, and the exercise of democratic rights and freedoms.

The bill has been reported back from the Justice Committee, and I want to thank the committee for its careful consideration of the bill. It’s been a very, very busy committee—there’s a lot of work to be done, and I’m grateful for the work they’ve done. In particular, I appreciate the courage displayed by submitters who talked about their experiences, and that was very powerful and moving. Some submitters expressed concern that the bill would criminalise the exercise of rights and freedoms, but this is neither the bill’s intent nor its effect. The measures in the bill are to protect New Zealanders from efforts to undermine, manipulate, or control their ability to exercise those guaranteed freedoms.

In response to the feedback, the Justice Committee has recommended several changes to the bill. The changes provide greater clarity about what activities are in scope of the new offences and who can commit the existing offences. This delivers greater certainty in the courts about what criminal foreign interference is and how it differs from lawful and legitimate foreign-influence activities when a person exercises their rights and freedoms.

I welcome the committee’s recommendations. First, the committee made improvements to the two new foreign interference offences contained in the bill. The first offence criminalises improper conduct done for or on behalf of a foreign power which is meant to compromise New Zealand’s interests. The second offence criminalises the act of committing an imprisonable offence to benefit a foreign power.

Regarding the improper conduct offence, the committee clarified that protecting information as part of everyday activities, including personal and unpaid activities, and using encrypted communications does not on its own provide a basis to infer that a person is engaging in improper conduct. Regarding the foreign power benefit offence, the link to the foreign power has been strengthened by also incorporating the “for or on behalf of” wording in this offence. It makes it clearer that committing an offence at the direction of the foreign power, or by a person’s independent efforts to benefit a foreign power through criminal activity that causes harm to New Zealanders, is not permitted.

Importantly, the committee also updated the new offence to make it clear that exercising rights and freedoms alone does not provide sufficient basis to infer that a person is committing either offence. This was a major concern for many submitters. While the bill is not intended to criminalise lawful exercise of rights and freedoms, I appreciate the committee’s work to make this explicit.

Lastly, the committee also introduced amendments to clarify elements of the new definition of a “person who owes allegiance to the Sovereign in right of New Zealand”. These amendments make owing allegiance a question of law and will improve certainty around who can commit espionage.

By incorporating the committee’s changes, I believe the bill now addresses its primary purpose of strengthening our criminal justice response to foreign interference. It draws a clearer line between what we are protecting and the actions that we will not tolerate.

I know that members on both sides of the House will recognise the gravity of the challenge that foreign interference poses to New Zealand. I look forward to us progressing these measures to strengthen our resilience against efforts intended to undermine our wellbeing and our democratic way of life. Through this work, New Zealand will become safer and more secure, helping to ensure that it continues to be a place where everybody can enjoy the guaranteed rights and freedoms afforded to them under our laws. On that basis, I commend this bill to the House.

The question is that the motion be agreed to.

Thank you, Madam Speaker. This is another bill that has an interface with human rights, and I did want to speak on this because it was actually quite a challenge at the Justice Committee to, well, first of all, actually understand how it was to work.

As the “Minister for Foreign Investment” has just said, even who is bound by these obligations is a moot point, so there are a whole lot of kind of triggers. The first thing is you’ve got to owe “allegiance to the Sovereign in right of New Zealand”, which sounds like a really obscure thing. Basically, “the Sovereign in right of New Zealand” is a little bit of an obscure phrase. It just means “to New Zealand”—it means you’ve got to be loyal to New Zealand. Who has a duty not to harm New Zealand? It is any New Zealand citizen, certainly, and that includes whether they’re in New Zealand or not—and that’s an important point to make—but also anyone who is in New Zealand.

Now, there are some immunities. We know that diplomats have immunities, but other than diplomats, pretty much anyone in New Zealand has an obligation not to engage in these activities, and there are others: people who might not be citizens, but who might have such a strong connection to New Zealand—whatever that exactly means—such as owning property here and residing here for a significant portion of the year. So that’s the first threshold: do you owe allegiance, because if you owe allegiance, then you’ve got an obligation not to undermine the interests of New Zealand and prefer some foreign power.

The other point is this: in terms of the conduct itself, there are a number of kinds of triggers. The first is that it’s got to be some kind of improper conduct, and “improper conduct” is also defined, and it’s kind of quite labyrinthine, if you like. It can be “conduct that is of a covert nature,”—and so it’s not telling people why you’re seeking information—or conduct which is exploitative, manipulative, intimidating, or threatening. That is to say that if someone is at a protest and you say, “You really ought not be going to those protests, or bad things might happen.”, you can say that, but not on behalf of a foreign power, because that’s the other thing: the action must be by or on behalf of a foreign power.

Now, you might be an advocate for a particular cause and you might not like the people who are on the other side of the fence, and you can tell them that and you could even—intimidation is a crime in and of itself. But if you were to act in an intimidating manner, you wouldn’t be engaging in foreign interference unless you were acting either for or on behalf of that foreign power, and I think that that’s important to recognise. It’s not just that you want to support the interests of a foreign power and you think that they’re the good guys, but you’re doing it in at least in some sense at the direction or the behest of a foreign power. Given that a lot of this is actually about political interactions and about having a political point of view, we’ve got to be cautious about that, so I think the threshold will indeed be high.

Before I sit down, I did want to point out that one of our real concerns is that in terms of things like the Ukraine conflict, the Israel-Gaza conflict, and many other conflicts around the world, there are differing points of view, and whilst I might have particular views, other people who wish to speak out shouldn’t be seen as engaging in foreign interference simply because they are holding a political point of view. Let’s be clear: that political point of view may well be supported by a foreign State and they may well be supplied with information by a foreign State, but they’re not acting under the direction of the foreign State, and if all they’re doing is engaging in political speech—whether that’s marching in the streets or posting on Facebook—we’ve got to be very cautious that we don’t unnecessarily curtail those sorts of activities.

It’s a complex law. It’s actually one that will probably benefit most by having a committee stage discussion to fully flesh out the nuances of some of those obligations and restrictions, but until we get there, I’m happy to leave it there. Again, it’s a bill we support, but one where we need to clearly articulate where the balance needs to be struck between the rights of citizens to act and the rights and duties to protect the interests of New Zealand.

Thank you, Madam Speaker. The Crimes (Countering Foreign Interference) Amendment Bill is something that was discussed at length in the Justice Committee, and it generated a 108-page departmental report. I think that perfectly captures what the previous speaker, the Hon Dr Duncan Webb, mentioned in terms of the complexity and the hooks around this bill. In terms of the context of the bill, the idea is that it is supposed to strengthen New Zealand’s law to better prevent and respond to foreign interference intended to harm New Zealand, by introducing a number of new criminal offences in the Crimes Act 1961.

The first challenge that we do see with this, as we inquired during the select committee stage, is that it overlaps with a number of existing offences within the Crimes Act, particularly around elements of espionage, etc. When we did ask the officials about this, there was definitely a sense of it being a grey area and of uncertainty, and of “Well, we will just have to roll it out and see how it goes.”, which I think is a shocking approach to anything that creates a criminal offence within our Crimes Act.

Now, the Green Party does not support this bill, because it is important to mention that while it is important to ensure that Aotearoa is protected from genuine threats of foreign interference, this legislation does not ensure sufficient protections for civil liberties and democratic freedom.

I want to unpack some of these things. I think the first thing we see in terms of what the submitters have said is—most importantly—the tension with the New Zealand Bill of Rights Act (BORA). Specifically, yes, this legislation, like all pieces of legislation that come before Parliament, will have a BORA report, or a consistency report against the New Zealand Bill of Rights Act. However, a number of submitters have submitted and mentioned that the BORA report and the vetting itself doesn’t sufficiently capture the complexity of this bill, particularly around some of the additional amendments.

Most specifically, some of the areas that are of concern for submitters and also of concern for the Green Party are around freedom of association and freedom of expression. Now, in this case, what the bill doesn’t necessarily capture is the complexity of the demographics of Aotearoa New Zealand. With that, you are going to see protests and activism of all forms. It is within people’s rights to do so peacefully, and I think that any form of intimidation or violence is already considered a criminal offence.

The other aspect is freedom of association, and this is something that is going to be really challenging for anyone who is seeking to use this to contest this bill, because of the fact of what that would mean and the limitations it would place on that freedom of association, particularly when we are looking at it in light of the complexity I mentioned in terms of the demographics of Aotearoa. Now, for a number of people—myself included, as someone from marginalised communities and also from a background of being a migrant of colour—there is and there continues to be a lack of understanding of our relationship and association as a person of that particular ethnicity. That level of nuance has not been captured in this bill, and, most concerningly, that level of nuance has not been teased out.

I’m sorry to interrupt the member who has the call, but the time has come for the special debate. This second reading is interrupted and set down for resumption next sitting day. The member will be entitled, if he wishes, to take the remainder of his call at that time.

Debate interrupted.