The Justice Committee has examined the Crimes (Countering Foreign Interference) Amendment Bill and recommends by majority that it be passed. We recommend all amendments by majority.

The Crimes (Countering Foreign Interference) Amendment Bill would amend the Crimes Act 1961. It would strengthen the law to better prevent and respond to foreign interference intended to harm New Zealand. Foreign interference involves a foreign state, either directly or indirectly, attempting to interfere with New Zealand’s interests in a secretive, coercive, or dishonest way. Foreign interference may affect national security, the economy, elections, or individuals and communities.¹

The bill would introduce new offences related to foreign interference into the Crimes Act. It would be an offence if a person:

• engages in covert, deceptive, coercive, or corruptive conduct for, or on behalf of, a foreign power, to intentionally compromise a protected New Zealand interest, or is reckless as to whether the conduct is likely to compromise such an interest

• commits an imprisonable offence to intentionally benefit a foreign power, or is reckless as to whether committing the offence is likely to provide such benefit.

The bill would require the Attorney-General to consent before proceedings can be brought for these offences.

The bill would also introduce new offences to address gaps in the criminal liability for espionage, treason, and inciting to mutiny. It would make it an offence for a person who owes allegiance to New Zealand’s Sovereign to assist another person to do, or not do, a relevant act, when certain conditions are met. The bill would also modify and extend existing offences related to espionage and wrongful communication, retention, or copying of information held by certain public agencies.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Clause 4 would insert new section 2A into the Crimes Act. Section 2 of the Act provides definitions for how terms used in the Act should be interpreted. Proposed new section 2A would introduce a definition for a “person who owes allegiance to the Sovereign in right of New Zealand”. This definition would only apply for the purposes of interpreting a small number of offences in the Crimes Act. It would not be an exhaustive definition. We propose several changes to this clause to make the definition, and its legal status, clearer. We discuss these recommendations below.

Clause 10 would insert new sections 78AAA and 78AAB into the Act to create new offences related to foreign interference.

New section 78AAA would make it an offence to engage in covert, deceptive, coercive, or corruptive conduct for or on behalf of a foreign power. The offender must either have intended to compromise a protected New Zealand interest or been reckless as to whether the conduct was likely to compromise such an interest.

New section 78AAB would make it an offence to commit any imprisonable offence intending to, or being reckless as to whether the offending is likely to, provide a relevant benefit to a foreign power.

We recommend several changes to these proposed new sections, to improve their clarity or to better reflect the bill’s policy intent. We discuss these recommendations below.

Clause 16 would make minor and consequential amendments to Acts specified in the Schedule of the bill. As introduced, the Schedule includes amendments to 13 Acts.

Amendments to eight Acts included in the Schedule as introduced would set up an exclusion so a person could still be prosecuted or compelled to give evidence for the offences in new sections 78AAA and 78AAB, even if they have general immunity. This is consistent with existing provisions for other serious offences in the Crimes Act, including espionage. Following the bill’s introduction, it has been identified that several additional Acts need to be amended to make this change, and some other consequential changes. Accordingly, we recommend amending the Schedule to include amendments to the following Acts:

• the Children and Young People’s Commission Act 2022

• the Commerce Act 1986

• the Fair Trading Act 1986

• the Financial Markets Authority Act 2011

• the Intelligence and Security Act 2017

• the Oranga Tamariki Act 2019

• the Privacy Act 2020

• the Radiocommunications Act 1989

• the Reserve Bank of New Zealand Act 2021

• the Takeovers Act 1993.

The Schedule, as introduced, would also amend the Bail Act 2000. Section 9 of the Bail Act provides that a person charged with espionage or treason cannot be granted bail, unless ordered by the Governor-General or a High Court Judge. The bill would amend section 9 to include the offences in new sections 78AA and 78AAA in this provision. This means that a person charged with either of these offences would also have their access to bail restricted.

We consider that the offence in section 78AA (which relates to wrongful communication, retention, or copying of classified information) should not be included in this provision. However, we consider that the new offence in new section 78AAB (which relates to committing an imprisonable offence to benefit a foreign power) should be included. We recommend amending section 9 of the Bail Act, by means of amending the Schedule, to provide for this.

The Green Party does not support this bill. While it is important to ensure New Zealand is protected from genuine threats of foreign interference, this legislation does not ensure sufficient protections for civil liberties and democratic freedoms. We share the concerns by submitters that this legislation could be used against environmental advocates, trade unions, human rights groups, and indigenous peoples.

We consider that the new offences created represent state overreach and a significant threat to civil liberties, particularly the right to peacefully protest and organise, the right to privacy, and the right to voice one’s own personal political opinions.

References to “foreign power” and what it means to act “for or on behalf of” a foreign power are too broad and have not addressed the concerns of many submitters. Intelligence agencies often highlight concerns about foreign influence from countries such as China and Russia, but there is no clarity on how this bill will address, if at all, the influence of Five Eyes countries and the additional complexities of navigating those relationships. There is also insufficient clarity on how this would address interference from powerful multi-national corporations who might owe no allegiance to any foreign power.

References to benefiting a foreign power are also too subjective and broad. The implications of this are numerous; in particular, the right to peaceful protest could be threatened by accusations of protest movements being in service of a foreign power.

We are also concerned that consultation with Māori was inadequate, particularly given submitters’ concerns about the Crown’s poor track record in this area, and the risk that this legislation could be used to unfairly target Māori, especially those with aspirations for Tino Rangatiratanga and Mana Motuhake.