Submission to Parliament on the Crimes (Countering Foreign Interference) Amendment Bill to Amend the Crimes Act 1961
BA, LLB Cant; LLM (First Hons), MComLaw (First Hons), MTaxS (Hons) Auck
Shieff Angland | Level 16 | 88 Shortland Street | Auckland
[The views expressed in this submission are those of the author alone and not any other entity with which he is associated]
The Crimes (Countering Foreign Interference) Amendment Bill represents an important legislative response to growing concerns about foreign interference in New Zealand. The bill seeks to address the vulnerabilities exposed by global trends in foreign state influence operations, including covert and deceptive activities targeting sovereignty, security, and democracy. With its focus on protecting New Zealand’s core interests, the bill aligns with international practices, reflecting heightened awareness of foreign threats across jurisdictions like Australia, Canada, and the United States.
As a lawyer and observer of geopolitics, I commend the government’s intention to safeguard New Zealand’s interests against covert threats. However, the bill’s inclusion of an objective recklessness test for certain offences poses significant risks, both to individuals’ rights and to New Zealand’s geopolitical positioning. Its overly broad definitions, the importance of maintaining New Zealand’s non-aligned stance, and the risks of future misuse of these provisions warrant scrutiny.
I. The Dangers of a Recklessness Standard: Elevating the Risks of “Ought to Know”
The Problem with “Ought to Know”
The inclusion of the phrase “ought to know” in proposed new section 78AAA(3)(b) defining recklessness is particularly problematic (see Clause 10 of the Bill). It introduces an objective standard that goes beyond actual knowledge, effectively penalising individuals for failing to foresee risks that they may not have consciously considered. This raises several issues:
- Ambiguity: “Ought to know” is open to interpretation and may lead to inconsistent applications of the law, particularly when evaluating whether a person should have recognised a risk in complex or ambiguous circumstances.
- Unfair Penalisation: Individuals who act in good faith but fail to anticipate potential risks could face severe penalties, even in the absence of malicious intent or awareness.
- Precedent from R v Tipple [2006] BCL 197; BC200562150 overridden:?The Court of Appeal clarified that recklessness involves a subjective awareness of the risk, (see careful discussion at [25]-[40] that recklessness) requires “a conscious appreciation of a real risk and acting or failing to act in a manner which shows a complete disregard for that risk.” By introducing “ought to know,” the Bill deviates from this carefully balanced precedent and lowers the threshold for culpability.
Innocent Activities at Risk
Expanding the recklessness standard through “ought to know” risks criminalising otherwise lawful or innocuous conduct. Examples include:
- Diaspora Communities: Members of diaspora communities, such as journalists or activists, who engage in routine discussions with foreign entities may inadvertently violate the law under this standard.
- Business and Academic Collaboration: Researchers or businesses engaged in international cooperation could face liability for activities that are misconstrued as indirectly benefiting foreign powers.
Replacement Provisions for Recklessness
To address these concerns, I propose the following replacement provisions:
- Replace “Ought to Know” with Actual Knowledge: Require proof that the defendant was actually aware of the risk and consciously disregarded it. This aligns with the precedent set in R v Tipple [2006] BCL 197; BC200562150, where the Court reinforced the need for subjective awareness of risks.
- Explicitly Define Conscious Disregard: Amend the bill to state that recklessness involves “a substantial and unjustifiable risk where the defendant is aware of the risk and consciously disregards it.” Again, see R v Tipple.
- Exemptions for Legitimate Activities: Add a clause explicitly excluding activities undertaken for cultural, academic, or commercial purposes unless there is clear evidence of intent to harm New Zealand’s interests.
II. Overly Broad Definitions and Their Risks
The bill includes several definitions that are excessively broad and could result in unintended consequences. For example:
- Manipulative Conduct: The term “manipulative” is undefined and subjective. It risks capturing legitimate advocacy or persuasion as improper conduct. A clearer standard, such as “unlawful or deceptive coercion,” should replace it.
- International Relations: This term is too expansive and risks penalising activities that indirectly affect relationships with foreign governments, even if such activities are routine or harmless. Narrowing this to actions “intended to harm New Zealand’s international standing” would mitigate overreach.
- Family and Enduring Connection: The term “family” is undefined in the bill, creating ambiguity. This could lead to individuals being unfairly tied to New Zealand’s interests based on tenuous or outdated relationships. A clear definition focusing on current and active ties is necessary.
- Relevant Benefit and Economic Capability: Including “benefiting a foreign power’s economic capability or influence” is problematic, as it could capture legitimate activities like trade or international collaboration. Restricting this to “unlawful or covert acts that materially aid a foreign power’s military aims” would address this issue.
III. The Geopolitical Balance: Lessons from Australia and Maintaining New Zealand’s Non-Aligned Position
Australia’s Foreign Influence Transparency Scheme Act 2018 was part of a broader effort to counter foreign interference. It mandated the registration of individuals and entities engaging in political activities on behalf of foreign principals. While the legislation aimed to enhance transparency, its implementation highlighted several challenges:
- Economic Repercussions: The Act, along with other measures targeting foreign interference, was perceived by China as part of a broader agenda to curb its influence in Australia. This contributed to escalating tensions, leading to economic repercussions such as tariffs and import restrictions on Australian exports like wine and coal.1
- Diplomatic Strains: China criticised the legislation as discriminatory and politically motivated, further straining bilateral relations. The perception that Australia was aligning too closely with the United States, particularly through the AUKUS defence pact, compounded these tensions.2
New Zealand must avoid a similar trajectory by ensuring that its legislation does not appear disproportionately aligned with any geopolitical bloc. Maintaining balanced and constructive relations with all key partners is essential for economic stability and diplomatic resilience.
The Benefits of Non-Alignment
New Zealand’s status as a non-aligned nation has historically enhanced its international standing. As a small country, neutrality allows New Zealand to:
- Increase Soft Power: Non-alignment fosters an image of independence and fairness, enabling New Zealand to “punch above its weight” in international diplomacy. For instance, New Zealand’s role in nuclear disarmament and its independent stance on trade negotiations have cemented its reputation as a principled actor on the global stage.
- Preserve Economic Flexibility: By avoiding overt alignment with larger powers, New Zealand can maintain robust trade relationships with a diverse range of partners, including both China and the United States.
- Examples of Non-Aligned Success: Other small, non-aligned nations provide valuable models. Switzerland, for example, has leveraged its neutrality to become a hub for international organisations and diplomacy, including hosting key global forums. Singapore, while maintaining close economic ties with major powers, has avoided entanglement in military alliances, enabling it to act as a mediator in regional conflicts. Similarly, Ireland’s neutrality has bolstered its influence in peacebuilding and human rights advocacy, illustrating how a principled non-aligned stance can yield disproportionate diplomatic clout.
Risks of Subsuming Independence
If New Zealand becomes perceived as an extension of Australian or United States foreign policy, it risks losing this advantageous position. Alignment could:
- Reduce Credibility: New Zealand’s ability to act as a neutral intermediary in international conflicts or negotiations would be diminished.
- Erode Trust: Key trading partners, particularly in Asia, may view New Zealand as less independent and reliable.
To sustain its non-aligned status, New Zealand must:
- Craft legislation that is clearly universal and not targeted at specific nations.
- Continue advocating for multilateral solutions to global challenges.
- Engage in proactive diplomacy to reassure all partners of its commitment to balanced and independent foreign policy.
IV. Risks of Future Misuse and Erosion of Democratic Safeguards
While the bill’s provisions aim to address genuine national security concerns, history demonstrates that laws with broad discretionary powers can be misused, particularly in politically charged environments.
- Politically Motivated Enforcement: Changes in political leadership or shifts in policy priorities could result in the bill’s provisions being used to target dissenting voices or minority groups. Examples from Hungary and the United States highlight how democratic safeguards can erode over time.
- Expanding Definitions: Once enacted, the definitions of “recklessness” and “benefit to a foreign power” could be interpreted expansively, leading to unintended consequences and selective enforcement.
Guardrails Are Not Permanent
New Zealand’s democracy, while robust, is not immune to challenges. As seen in other jurisdictions, assumptions about the permanence of the rule of law and democratic safeguards can prove false. Legislating with this awareness is essential to ensuring that powers granted today cannot be abused tomorrow.
- Limit the Scope of Recklessness: Replace “ought to know” with “actual knowledge” to avoid penalising inadvertent conduct. Require clear evidence of a substantial and unjustifiable risk consciously disregarded by the defendant.
- Refine Definitions: Clarify vague terms like “manipulative,” “international relations,” and “relevant benefit” to ensure only genuinely harmful activities are captured. Define “family” to prevent overbroad or arbitrary applications.
- Strengthen Oversight Mechanisms: Establish independent review processes for cases brought under the bill to ensure fair application. Require transparency in prosecutions to avoid politically motivated enforcement.
- Reiterate New Zealand’s Neutrality: Clearly communicate the bill’s universal application and ensure it does not appear targeted at specific states or aligned exclusively with any geopolitical bloc. Engage proactively with key trading partners, including China, to reassure them of New Zealand’s commitment to balanced and independent foreign policy.
The Crimes (Countering Foreign Interference) Amendment Bill is a necessary step in addressing the evolving threats to New Zealand’s sovereignty and democracy. However, its reliance on overly broad definitions and the recklessness standard, particularly the phrase “ought to know,” risks over-criminalisation, chilling legitimate activity, and eroding New Zealand’s geopolitical neutrality. By refining these provisions and building stronger safeguards, Parliament can ensure the bill achieves its aims without unintended consequences. This approach will strengthen New Zealand’s security while preserving its values, rights, and international standing.
Senior Business Analyst at Ardent Consulting Ltd (New Zealand)
2 个月Very helpful