Crimes (Countering Foreign Interference) Amendment Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

New Zealand’s National Security Strategy 2023-2028, New Zealand Government, 2023, DPMC website: https://www.dpmc.govt.nz/our-programmes/national-security/aotearoas-national-security-strategy

2023 National Security Intelligence Priorities, New Zealand Government, 2023, DPMC website: https://www.dpmc.govt.nz/our-programmes/national-security/national-security-intelligence-priorities

New Zealand’s Security Threat Environment 2023, New Zealand Security Intelligence Service, 2023, NZSIS website: https://www.nzsis.govt.nz/assets/NZSIS-Documents/New-Zealands-Security-Threat-Environment-2023.pdf

New Zealand’s Security Threat Environment 2024, New Zealand Security Intelligence Service, 202, NZSIS website: https://www.nzsis.govt.nz/assets/NZSIS-Documents/New-Zealands-Security-Threat-Environment-2024.pdf

Let’s Talk About Our National Security: National Security Long-term Insights Briefing, Department of the Prime Minister and Cabinet, March 2023, DPMC website: https://www.dpmc.govt.nz/our-programmes/national-security/national-security-long-term-insights-briefing

2023 National Security Public Survey Report, Department of the Prime Minister and Cabinet, 2023, DPMC website: https://www.dpmc.govt.nz/our-programmes/national-security/national-security-long-term-insights-briefing/2023-national

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

Regulatory Impact Statement: Criminal justice proposals to counter foreign interference targeting New Zealand, 2 May 2024, Ministry of Justice Website:

https://www.justice.govt.nz/justice-sector-policy/regulatory-stewardship/regulatory-impact-assessments/

Some content in the regulatory impact statement has been withheld in accordance with withholding grounds under the Official Information Act 1982.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

Analysis on the potential costs and benefits are available in the Regulatory Impact Statement. The cost and benefit analysis begins at page 33 of the Regulatory Impact Statement which can be found on the Ministry of Justice website: https://www.justice.govt.nz/justice-sector-policy/regulatory-stewardship/regulatory-impact-assessments/

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

YES

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

YES

It is difficult to assess the likely deterrent effect of the new offences in the Bill, particularly as it amends domestic law, but is intended to also have a cross-jurisdictional effect. However, the extent to which contraventions of the law occur and are detected will affect the costs to the Crown in taking enforcement action and ultimately prosecuting the new offences. If foreign states are deterred by the threat of prosecutions, this will have significant benefits in protecting core New Zealand interests and will not result in additional prosecution costs.

Overall, it is difficult to assess the relationship between the actions of the regulators and potential commission of foreign interference offences as this is not comparable with typical regulatory systems.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

The Ministry of Justice analysed the Bill and did not identify any international obligations that conflict with the policies contained in the Bill.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

Implications for Māori and the Crown’s obligations under Te Tiriti o Waitangi in relation to the policy being given effect by this Bill was considered as part of the analysis in the Regulatory Impact Statement. Details are set out at page 20 of the Regulatory Impact Statement, which can be found on the Ministry of Justice website: https://www.justice.govt.nz/justice-sector-policy/regulatory-stewardship/regulatory-impact-assessments/

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

The Attorney-General’s advice will be available on the Ministry of Justice’s website upon introduction of the Bill. This will be accessible on the Ministry’s website: https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/the-bill-of-rights-act/compliance-reports/

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

YES

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

The Bill creates new offences:

·         a foreign interference offence

·         an offence that applies to anyone who commits an imprisonable offence to benefit a foreign power, and

·         new offences to address gaps related to criminal liability for the offences of espionage, treason, and incitement to mutiny.

The first two offences above are category 4 offences under the Criminal Procedure Act 2011. This will mean that if the case proceeds to trial, the trial will generally be a jury trial in the High Court.

3.4.1. Was the Ministry of Justice consulted about these provisions?

NO

The provisions were developed in the Ministry of Justice so no separate consultation was necessary.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

NO

3.5.1. Was the Privacy Commissioner consulted about these provisions?

YES

The Privacy Commissioner was consulted as part of the Bill’s departmental consultation process. The Commissioner provided the following comment:

The proposed new foreign interference offences are very broad in scope and create an ability for Police to use search and surveillance powers in relation to activities that may not currently be subject to such powers. Given the privacy implications of such search and surveillance powers, I have concerns about whether the proposed new offences are appropriately targeted to address harm and to avoid unreasonably limiting the right to privacy.

The Bill contains several protective elements to ensure that the new offences are targeted, and that relevant investigations and prosecutions are appropriate and in the public interest.

The new offences are designed to only target harmful foreign-interference activity or strengthen existing criminal sanctions. For example, to ensure that only people who commit foreign interference are captured, the new foreign interference offence does not criminalise the activities of people who:

·         are not acting for a foreign state

·         do not know, or have no reasonable way of knowing, that they are being used by a foreign state to undertake foreign interference against New Zealand, or

·         are acting for a foreign state in an open, transparent, and lawful manner.

The limits on the use of police powers are described at 4.9. The safeguard related to proceedings is described at 4.6.

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

Targeted engagement with a small number of representatives of ethnic and faith-based communities was undertaken during the policy development stage. This engagement was intended to identify communities’ experiences with foreign interference in New Zealand.

These discussions highlighted the need to ensure communities can participate in public discussions about foreign interference safely, without fear of retribution (or other interference/influence) from foreign states. The discussions also identified a risk that raising these issues may contribute to some ethnic and faith-based communities being negatively targeted by other New Zealanders due to their cultural or familial ties to named states that undertake foreign interference activity. This harm can be exacerbated by the spread of disinformation about the communities or disinformation about the policy contained in the Bill. 

Beyond these discussions, the policy in the Bill was not consulted externally due to the sensitive nature of the work involved. It is expected that public consultation will take place at the Select Committee stage.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete?

YES

The Ministry of Justice has worked closely with relevant agencies to ensure that the provisions in the Bill are workable and can be operationalised.

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

YES

A key element of the new foreign interference offence is that a person must be engaging in activity “for, or on behalf of, a foreign power”.

The offence excludes activities that constitute the lawful performance of a person’s functions or duties as an employee, contractor, authorised representative, or agent of the Government of New Zealand from this definition. This is to ensure that when a New Zealand officer/official is working in collaboration with a foreign power and the safety or security of a person who may be engaging in malign conduct against New Zealand is impacted, the officers/officials are not inadvertently captured by the scope of the offence.

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

YES

Attorney-General consent to proceedings

The new foreign interference offence and the committing an imprisonable offence to benefit a foreign power offence require the Attorney-General to consent to proceedings. This is similar to the existing espionage offence and wrongful communication of official and classified information offences.

The approach is in line with the Solicitor-General’s Prosecution Guidelines[1] as the offences involve matters of national security and foreign relations. This safeguard helps to protect individuals from potential punishment by providing an extra check in the criminal justice process.

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

NO

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

YES

Police use of an existing warrantless search power

To support the enforcement of the two new foreign interference-related offences, the Bill enables the New Zealand Police to use an existing warrantless search power contained in section 25 of the Search and Surveillance Act 2012. The power enables Police to act swiftly to avoid the loss of key evidence, but is also constrained and can only be exercised if a constable has reasonable grounds to:

·         suspect that one of the new offences has been, is being, or will be committed and that there is great urgency requiring immediate action; and

·         believe that there is evidence in a place, vehicle, or other thing that relates to the suspected offending.

Currently, this power only applies to the offences of espionage and wrongful communication, retention, or copying of classified information. Given the similarities in conduct involved in foreign interference and the scale of potential harms involved, it is appropriate that Police have the same power to obtain evidence of acts against the new offences. Where a warrantless power exists, the courts apply a warrant-preference approach to determine whether there was sufficient time for Police to apply for a warrant.