Submission: Crimes (Countering Foreign Interference) Amendment Bill

Published January 25, 2025 · Updated January 26, 2025

About the New Zealand Council for Civil Liberties

The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.

We wish to make an oral submission to the Committee.

Summary

The Council shares the concern that some foreign influence on the public life of Aotearoa may not always be beneficial.

The Explanatory Note in the bill states that the bill is to “better prevent and respond to foreign interference targeting New Zealand.” To achieve this, the bill – amongst other things – creates new offences in the Crimes Act, and makes amendments to the Search and Surveillance Act and the Summary Offences Act.¹

Unfortunately, the new offences are a significant over-reach by the state, that are wide open to abuse by governments that would find it politically convenient to suppress our rights to advocate, organise and peacefully protest. We do not have to look far into New Zealand’s history to find examples of protests and campaigns being condemned by governments or state agencies as acts of foreign interference.

Governments that can outlaw or chill protest on the basis of disliking the aims of the protestors are not democratic but authoritarian. At a time when democracy is being challenged in so many countries, it is shocking that New Zealand’s government is not defending democracy but seeking to shackle it.

The committee should be particularly concerned that the Attorney-General’s vetting of the bill under the New Zealand Bill of Rights Act (BORA) does not consider the criminal offences contained in new sections 78AAA and 78AAB, and their impact on New Zealanders’ rights and freedoms.

The Council recommends that the bill is not passed in its present form.

If the committee thinks the bill should proceed, we strongly recommend that:
- clause 10 is amended to delete new section 78AAA;
- new section 78AAB is amended to protect activities guaranteed by the Bill of Rights Act;
- the ability to use warrantless search powers is removed; and
- the bill is amended to add all of the “relevant offices” to Schedule 1 of the Official Information Act.

BORA vet incomplete

As with other legislation, this bill was sent to be assessed for its consistency with the rights affirmed in the New Zealand Bill of Rights Act 1990.² The assessment was signed off by the Attorney-General.

The assessment considers expanded use of warrantless search powers, the provisions to base offences for misuse of official information on an expanded definition of “relevant information”, and changes to the definition of people who owe “allegiance to the sovereign in right of New Zealand.” What the assessment fails to do however, is consider the new criminal offences that clause 10 inserts as new sections 78AAA and 78AAB.

This is significant omission because, as we point out below, these new provisions raise substantial human rights concerns. Because the Attorney General and Crown Law have failed to even consider them, it means the Attorney-General’s conclusion that “that the Bill does not appear to be inconsistent with the Bill of Rights Act” cannot be sustained. The Council does not believe that the Attorney-General has properly carried out her duties under BORA, or under Parliament’s Standing Orders.³

The Council recommends that the committee ask the Attorney-General to produce a supplementary assessment of bill, specifically considering whether the new sections 78AAA and 78AAB are consistent with the rights affirmed in BORA. If the Attorney-General refuses to do this, we recommend that the committee use its powers to seek its own BORA advice from external legal counsel.

If the advice on BORA consistency provided to the committee finds that these provisions are inconsistent with BORA, then the Council recommends that the committee act in accordance with its duties under section 3 of that Act, and either amend the provisions so as to make them consistent, or recommend that the bill is not passed.

Secret Cabinet papers on the bill – public and committee hampered

The Council notes that both the public and the committee’s work would also be assisted by reading the relevant Cabinet papers for the legislation. Unlike most other pieces of legislation, the government has evidently decided not to publish the Cabinet papers for the bill’s policy development and approval for introduction. This secrecy inevitably hampers our, and MPs, ability to scrutinise the policy motivations, design and objectives for the legislation. It runs counter to the section 4 purpose of the Official Information Act (OIA), which states that it is “to increase progressively the availability of official information to the people of New Zealand in order to enable their more effective participation in the making and administration of laws and policies.”

The previous National government introduced a Cabinet Office Memorandum on proactive publication of Cabinet material. This was strengthened by Cabinet Office Circular CO (23) 04, which states that “All Cabinet and Cabinet committee papers (Cabinet papers) and minutes must be proactively released and published online within 30 business days of final decisions being taken by Cabinet, unless there is good reason not to publish all or part of the material, or to delay the release beyond 30 business days.”⁴ This is reiterated in paragraph 8.19 of the Cabinet Manual.⁵

The Council has been unable to locate the Cabinet papers relating to the bill on the Ministry of Justice website.⁶ Paragraph 26 of the Cabinet Office Circular states “Where a Minister decides not to proactively release Cabinet material, to partially release, or to extend the release timeframe, the paper should clearly note the decision, set out the reasons, and, in the case of an extended timeframe, indicate when the material will be proactively released. This information should be included in the Proactive Release section of the Cabinet paper.” However, neither the Circular nor the Cabinet Manual require the relevant Minister to publish a statement setting out the Minister’s “good reason” not to publish all of the material.

Given the subject matter of the bill, it may be suspected that the ‘good reason’ for non-publication is one of those set out in paragraph 25.1 of the Circular: “a decision might be made to not publish, or only publish part of the material, for matters which relate to national security, have international implications, and/or commercial, trade, or travel sensitivities”.

The supposition that ‘national security’ or ‘international implications’ are the reasons for this secrecy is supported by paragraphs 22 and 23 of the bill’s Regulatory Impact Statement (RIS), which indicate that the work on the bill was commissioned and referred back to the previous government’s External Relations and Security committee. These paragraphs refer to the following Cabinet committee minutes: ERS-21-MIN-0042 and ERS-23-MIN-0005.⁷

However, the Circular on publication of Cabinet papers is clear that where a minister thinks good reason exists to withhold only part of the information in the papers, they may redact this from the published documents. Paragraph 21 says published papers must be accompanied by a coversheet, along the lines set out in the appendix to the Circular. That, and the CabGuide section on proactive release, make clear that “The coversheet should clearly state who the releasing Minister is, the relevant portfolio(s), the date of issue, a list of the documents that are being released, and an explanation of the reasons for any redactions, if applicable.”⁸ This includes citing the relevant withholding ground of the OIA.⁹

Given the Circular, Cabinet Manual and the Minister of Justice’s pre-election commitment to open government,¹⁰ we are in the dark as to why the Minister of Justice has not published even a partially redacted version of the Cabinet material on this legislation. The secrecy increases our concern that, ironically, this legislation is itself a result of covert foreign interference by other ‘Five Eyes’ governments who are seeking to weaken the rights of New Zealanders, and the government does not want MPs or the public to know this.

The Council recommends that the committee uses its powers under Standing Orders 199 and, if necessary, 200 to (a) ask the Minister of Justice why he has not published the Cabinet papers relating to the bill, (b) publish the Minister’s reply to the committee, and (c) to be provided with a copy of all the Cabinet material relating to the development and introduction of the Bill. The committee could consider this in private or even in secret if necessary (under Standing Orders 222 and 223), but we urge it to make as much of the information public as possible.

Failing to obtain this information to aid its deliberations on the bill will only reinforce the view of ourselves and many others that our legislature is too weak, and captured by the executive.

New section 78AAA is a threat to our democracy

Clause 10 is at the heart of the problems with this bill. It will insert two new provisions into the Crimes Act 1961, as sections 78AAA and 78AAB.

New section 78AAA creates a new offence where a person:
- knows, or ought to know, they are acting for a foreign power, and
- acts in a covert, deceptive, coercive, or corruptive manner, and
- intends to, or is aware that they are likely to, harm specific New Zealand interests or are reckless as to whether their conduct harms New Zealand interests.

The provision is densely drafted and depends on definitions set out in subsections (5) and (6) that the Council has concerns about:
- the definition of “foreign power”;
- the definition of acting “for or on behalf of”;
- the phrase “protected New Zealand interest”; and
- the phrase “improper conduct”.

Foreign power

The definition of “foreign power” depends on in the bill depends on the definition in section 105C of the Crimes Act.¹¹ This is a wide definition, especially where it defines a foreign public enterprise as a company, body or person which a foreign government has the ability to control or dominate in the ways stated, or “otherwise”.

Many countries have economic and political systems where government has a strong influence on commercial enterprises, such as New Zealand with its state owned enterprises. Does it seem reasonable that using this definition we should expect other countries to regard the MetService or Airways New Zealand as a ‘foreign power’?

Furthermore, are we going to lock up New Zealanders for doing actions that might advantage the likes of Australia Post?

However, if the new section is retained in the bill there is a further problem with the definition. It does not cover conduct directed by a single individual or company not connected to the government of a foreign country, but who is seeking to advance that country’s interests at the expense of New Zealand’s interests. Based on their past conduct, it clear that billionaires like Rupert Murdoch, Elon Musk and Mark Zuckerberg or the companies they control could seek to interfere by corrupt means or stealth to further some other country’s interests, whether this is through covert surveillance of a select committee chair,¹² or manipulation of an information sharing platform through its algorithms or the creation of bot accounts advocating for particular actions.

For or on behalf of

A key issue with the definition of acting “for or on behalf of” is that it is not limited to obvious relationships such as being instigated by, directed or funded by, a foreign power, but also includes those where a foreign power is merely in “agreement” the actions.¹³ This is an extremely tenuous relationship on which to base a criminal offence.

At the extreme end of the spectrum, it’s possible that this element of the offence could be made out merely if a minister in a foreign government ‘likes’ a social media post made by a New Zealander.

More realistically, we have to consider the historical context of how the New Zealand state and its agencies have acted. In relation to many previous protest movements in our history, accusations have been made by politicians and officials that the protestors are agents, pawns or proxies of foreign powers. This has covered issues as diverse as the Māori land rights movement, the peace movement, and the trade union movement. Indeed, the Council itself has first-hand experience of this. When the Council was established in 1952 it was in the context of the massive overreach of state powers against dock workers. Special Branch police officers surveilled meetings and members of the Council, reporting that the New Zealand Council for Civil Liberties “is clearly a communist front organisation, the activities of which are to be watched”.¹⁴

Intelligence agencies may claim that all such activity and accusations are in the past. But not only can there be no guarantee that such smears and paranoia about people’s motivations will not occur again in the future, but the entire rationale for the bill is that we are in a dangerous period of international relations where countries are seeking to manipulate activities in other countries for their own benefit. Such circumstances are axiomatically likely to provide the context where a politician or other overseas official may ‘agree’ with the actions taken by someone in Aotearoa, and a New Zealand government official sees this as contrary to New Zealand’s interests. An obvious example would be an overseas official agreeing with the efforts of people in New Zealand to ensure Israeli government and military officials are held accountable for their genocide of Palestinians, when successive New Zealand governments have regarded Israel as an intelligence-sharing friend, if not ally. Similarly, support for West Papuan independence could be seen as contrary to New Zealand’s economic interests in selling milk powder to Indonesia.

Overall then, the “for or on behalf of” component of the proposed new offence is dangerous for our democracy, and is one of the reasons why it should be deleted from the bill.

Protected New Zealand interest

The definition of a “protected New Zealand interest” in the bill is extraordinarily broad and reflects years of work by intelligence agencies to broaden the definition of ‘national security’. The definition includes reasonable and important things like the safety and security of people, their democratic and human rights and the functioning of our elections. However it also captures state interests, such as “international relations”, “security and defence” and “economic well-being”. This would mean that offending a foreign government or powerful industries and lobby groups, or advocating against increased defence spending, would also be caught by the offence.

The latter are obviously issues that engage New Zealanders political and civil liberties. Since the new section also includes an offence of being reckless in compromising those interests, it’s highly likely that the bill would lead to far more active interference by the state. Action to highlight that New Zealand’s rivers are fouled with pollution from farming activity risks harming the tourist industry that the Prime Minister and Minister of Finance are relying on to boost the economy. Actions by people in support of Uyghur or Tibetan people in China, or Rohingya in Myanmar, or Palestinians or West Papuans could all fall into this category. We only have to look at our history to see how the state treated people campaigning against apartheid in South Africa to see how dangerous this is for our democratic rights.

Improper conduct

Members of the committee may think that none of these risks to our civil and political rights may eventuate unless there is “improper conduct”. But when we scrutinise the definition more closely, any reassurance falls away.

There are three components to “improper conduct”, and use of any of them means the test is met. To be “improper”, conduct can be any of the following:
- covert;
- deceptive; or
- coercive

Covert nature – the attack on encryption

This can include having a confidential meeting, or concealing a person’s actions or identity, or collecting or sharing information about a person without that person’s knowledge or consent.

Paragraph 142 of the RIS specifically states that using encrypted communications would meet the ‘covert’ element of the offence.¹⁵

However, use of encrypted communications is now an everyday occurrence for the vast majority of people. This will include using a web browser (since most data is now sent via an encryption protocol), a video conferencing application, as well as messaging services such as iMessage on an Apple device, WhatsApp or Signal.

The Council is firm in its support of strong encryption. Not only is it foundational for any modern economy, but also essential to protecting our privacy – upon which rests our ability to undertake many other democratic activities.

The assumption that a basic method of preserving one’s privacy is suspicious and an element of criminality is disturbing. However, it is consistent with efforts by intelligence agencies and governments over several decades to weaken or ban encryption, so that these agencies can render everyone legible to the state.

The proposed section contains an exclusion, proposed in subparagraph (ii) for “conduct that is carried out in the ordinary course of business, a profession, or an occupation for a lawful purpose (for example, the protection of trade secrets, commercially sensitive information, journalists’ sources, or legally privileged communications)”.

However while this may cover some professional duties, it does not include the basics of individual privacy. It seems unlikely to protect people who might be organising to gather evidence of improper conduct or illegality before ‘blowing the whistle’ to an appropriate authority. Further, the “an occupation for a lawful purpose” element does not clearly protect an activity such as committee members of a civil society organisation communicating with each other to organise a campaign, particularly if that might involve civil disobedience. This is partly a problem because the definition of “improper conduct” does not make clear that actions protected by the New Zealand Bill of Rights Act, or which are otherwise in the public interest, are excluded.

Deceptive nature

The element of the test for “improper conduct” that covers actions having a “deceptive nature” includes:
- misrepresenting or obfuscating a person’s purpose in acting or not acting
- failing to disclose the consequences of acting or not acting in accordance with any representation
- making a false representation
- omitting any material particular in dealing with another person.

It is not stated that these actions have to be intentional, and the omissions or obfuscations seem to be determined by the perceptions of the state. Further, it seems to be based on a dislike of people or organisations not fully revealing their advocacy strategy from the outset.

Failing to disclose the consequence of acting or not acting seems an unreasonably low standard for criminal prosecution. If an person does not tell an organisation that they will make a complaint to the Ombudsman, or initiate a judicial review, if an agency fails to do something seems like it would be caught by this.

“Omitting any material particular” is bordering on the farcical. People omit information all the time, not through any ill motive but because they decide it is not relevant to the decision or action they would like the person or agency they are communicating with to take.

Coercive nature

The bill defines this as including not just direct threats or intimidation, but also “denial or restriction of access to property or services”. Political protests will sometimes involve this, and the committee should consider how much ordinary political protest falls under this definition. An occupation or a blockade is a commonplace activity in a democracy and this bill would subject people to severe criminal penalties for this kind of activity.

In New Zealand’s recent past we have seen protests that blockade streets, occupy land, blockade ships or board oil rigs. In many cases the targets of such protests will have claimed that the protests threaten the “economic well-being” of the country. It is therefore easy to envisage this offence being misused against protestors.

Section 78AAA is a recipe for repression

It seems to us that the bill has been carefully written to mention things which should obviously be illegal, and which typically already are, while conflating these with activities that are not illegal and should not be illegal.

The bill’s definitions are so wide that bribery or threats of violence would be treated on the same level as people engaging in political protest according to their honestly held political beliefs, because those beliefs might align with that of a foreign government. This is obviously unacceptable in a rights-respecting democracy.

The continued use of “the person ought to know” that what they are doing might be on behalf of the interests of a foreign power is a ridiculous test. We cannot expect New Zealanders to have to determine whether their political views might align with those of a foreign power before they are allowed to act on them. It’s not “foreign interference” if a New Zealander acts on their own behalf even if their interests coincide with others.

The fundamental problem with this section is that it enables a government that wishes to, to decide what is acceptable for public debate in Aotearoa. It can criminalise otherwise lawful behaviour by New Zealanders based on the government’s belief that they are doing it on behalf of other countries, either knowingly or unknowingly. We do not accept that the government should have the power to limit the freedoms of New Zealanders on these grounds. This is an inappropriate limit on the freedom of New Zealanders to form their own opinions and participate in the political process according to those opinions.

The Council recommends that new section 78AAA be removed from the bill.

New section 78AAB: disproportionate penalties for political activity

Two more new offences added by clause 10 are defined in new section 78AAB. These are distinguished by whether the imprisonable offence that the person commits was done with the intention of providing a benefit to a foreign power, or whether they were merely reckless about whether it would provide such a benefit.

The Council is aware of the real harms that have been caused to people in Aotearoa by actions that these offences are aimed at countering.

Two of the definitions of “relevant benefit” – advancing intelligence activities and supporting coercive influence — seem well-targeted at those harms. The problem is the middle definition: enhancing “the political, economic, or military capability or influence of a foreign power”.

The intention of the government is to tackle spying activities. But this offence can also be used against ordinary democratic activity, in particular protests.

The public order offences used against protestors are imprisonable, and will therefore trigger section 78AAB. These include disorderly behaviour (s 3 Summary Offences Act 1981) and resisting the police (s 23 Summary Offences Act). Both of these carry maximum penalties of 3 months imprisonment.

But it would not be hard for a prosecution to argue that anti-war protests would be enhancing the political or military capability or influence of one side of an armed conflict. Similarly, it would not be difficult for prosecution to state that a protest against a particular foreign policy is recklessly enhancing the political or economic influence of a foreign power affected by that policy. Obvious examples are protests against America and the UK’s (unlawful) invasion of Iraq in 2003, where people were accused of supporting Saddam Hussein, or people protesting in support of Palestine. Even a counter-protest in support of Israel could be argued as enhancing the political influence of Israel.

This bill would mean that a person arrested for an offence at such a protest is not facing a maximum of 3 months imprisonment, but 10 years if intentionally benefitting a foreign power, and 7 years if they were ‘reckless’ about whether it was ‘likely’ to provide a benefit to a foreign power.

This would turn the policing of protests into an inherently political activity, as opposed to a public order and safety issue. What are currently minor offences could be ‘laundered’ into serious criminal charges, based on whether the police view the people involved as being effectively ‘enemies of the state’. This will have obvious damaging consequences for both the legitimacy of the police and the state more broadly.

It would also bring the police more frequently into conflict with the rights to freedom of expression and association affirmed in BORA. This is why the failure of Crown Law and the Attorney-General to consider the new offences in their BORA vet of the bill are so problematic. It should not be up to the courts to apply section 6 of BORA to interpret these offences through the lens of the rights it is meant to protect. The law should be clear, and it should clearly permit people to protest without facing 7 years in prison because someone thinks the person was ‘reckless’ in not understanding the protest might be seen as benefitting a foreign power.

The Council recommends that the “Reckless Conduct” offence be deleted from new section 78AAB.

Excessive severity of the penalties

While the Council understands the intention of the government with regard to deterring or punishing criminal offending against individual New Zealanders by agents for a foreign power, the excessively loose drafting of section 78AAB means that otherwise minor offences will carry a greater sentence than far more dangerous activities. Intentional corruption of foreign officials has a 7 year maximum sentence (section 105C). It is therefore out-of-kilter (to put it mildly) that intentionally providing a benefit to a foreign power has 10 year maximum.

If the “reckless conduct” offence is retained, ‘recklessness’ in providing a benefit to a foreign power should have a far lower consequence, and the Council suggests a maximum of no more than three months on top of the sentence for the other imprisonable offence, if the person is convicted of that offence.

Potential mitigation

Besides removing the “reckless conduct” offence and reducing the excessive sentences, there are several ways the proposed new section could be amended to reduce the likelihood of these problems occurring.

First, the bill could be amended to exclude offences below a certain threshold from triggering the new section.

Second the bill could be amended to exclude particular offences from triggering the new section. These could be the types of public order offences mentioned earlier.

Alternatively, the bill could draw from the Terrorism Suppression Act 2002. Section 5(5) provides that:¹⁶

To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person—

(a) is carrying out an act for a purpose, or with an intention, specified in subsection (2); or

(b) intends to cause an outcome specified in subsection (3).

A similar ‘for the avoidance of doubt’ clause could be added to section 78AAB.

The Council recommends amending section 78AAB to protect people’s ability to exercise their democratic rights without fear of politicised prosecution.

Unjustifiable limitations on rights

The Council’s view is that as drafted both offences are impossible to justify as justified limitations on people’s rights – especially freedom of expression – affirmed in the New Zealand Bill of Rights Act.

In order to be justified under BORA, a proposed limit on a right must serve an important public purpose, be rationally connected to that purpose, impair that right no more than is reasonably necessary to achieve that purpose, and be proportionate to the importance of that purpose.¹⁷

Protecting New Zealand citizens is an important public purpose. The offences proposed in sections 78AAA and 78AAB are rationally connected to that purpose. But there are real problems in meeting both the ‘minimal impairment’ and ‘proportionality’ tests.

Some aspects of the offence provisions are more justifiable than others, but the government is essentially proposing a law that will allow it to arbitrarily label people as enemies of the state, and imprison them for up to 10 years based on their advocacy of particular views and the government’s beliefs about their motivations. Being able to imprison people for 7 years based on ‘you ought to have known’ is quite disproportionate and far from being a minimal impairment of a person’s rights in a free society.

Attorney-General consent insufficient protection

The bill provides that the consent of the Attorney-General is required to prosecute people under either section 78AAA or 78AAB. This is no safeguard at all. The Attorney-General is a political position, for all of our myth-making about the role. The office holder is invariably an MP, a member of the government, and a member of Cabinet. If a government in which they serve declares that a protest is being conducted by people serving a foreign power, it is almost impossible to envisage them opposing the charging of people under the proposed new sections.

Since the Attorney-General and Crown Law couldn’t even do an adequate job of vetting this bill against BORA, why should the committee and public have any confidence in the Attorney-General doing a higher quality job when making a decision on prosecution?

We should not have to rely on politicians to defend our human rights and civil liberties – the bills brought before Parliament should not infringe them in the first place.

Warrantless searches

Clause 16 and the Schedule to the bill adds the ability to perform warrantless searches when investigating possible offences against sections 78AAA and 78AAB. As already discussed, this can include ‘political crime’ and the police being given carte blanche to perform warrantless searches while investigating such non-crimes should not be countenanced. We have seen how the police failed to declare material information to a judge when obtaining a warrant to search journalist Nicky Hager’s house: why should we have any confidence that searches for political offences, that do not even require a warrant to be obtained, will be undertaken with any probity?¹⁸

New Zealanders have the right to protection from unreasonable search and seizure under section 21 of the NZ Bill of Rights Act, “Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.” The search warrant system is an important protection for New Zealanders and should not be so casually undermined.

The Privacy Commissioner’s objection to the proposed expansion of warrantless searches is noted in the Departmental Disclosure Statement:¹⁹

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 Council is not at all reassured by the Ministry’s claims for ‘safeguards’ and ‘protective elements’ in the bill.

The Council recommends that Schedule to the bill is amended to delete the amendments to the Search and Surveillance Act 2012.

Definition of ‘relevant information’

Clauses 11 and 12 of the bill amend sections 78A and 78AA of the Crimes Act to replace the definition of “official information” with a wider one of “relevant information”, which includes both local government and “relevant offices”.

This is driven by the current dependence of the definition in the Crimes Act of “official information” on the coverage of the Official Information Act,²⁰ and the exclusion of some bodies (particularly what this bill defines as “relevant offices”) from the coverage of that Act.

This information, held by “relevant offices”, seems worthy of the same level of protection as similar information held by other bodies which are currently caught by the “official information” definition. However, there is an obvious alternative means of achieving that objective, which would also have the benefit of strengthening our democracy: bring those bodies under the OIA.

There have been numerous recommendations to bring these bodies under the OIA, some of which go back 25 years. The Office of the Clerk has been recommended for inclusion since 1999.²¹ The Law Commission recommended the inclusion of the Office of the Clerk, Office of the Ombudsman, and Office of the Auditor General in 2012, and called for the exclusion of both the Inspector-General of Intelligence and Security and Independent Police Conduct Authority to be reviewed.²²

These official recommendations have been supported by the Council – most recently in our submission on the Parliament Bill.²³ The government could achieve the same goal of protecting information by scheduling these bodies in schedule 1 of the OIA.²⁴

The issue of the inclusion of the Office of the Clerk (and other Parliamentary offices) in the OIA was raised in many submissions on the Parliament Bill, and that bill’s committee – which has overlapping membership with the Justice Committee – is considering the issue.

The Council recommends that the committee consult the Parliament Bill Committee on whether the Office of the Clerk needs to remain a “relevant office”.

The Council further recommends that this bill be amended to add all remaining “relevant offices” to Schedule 1 of the Official Information Act.

Conclusion

The Council believes that this bill is a significant threat to the rights and civil liberties of New Zealanders. It has been drafted so loosely that perfectly normal behaviours can be interpreted as being in service of a foreign power and punished accordingly. In doing so it gives the government the power to decide which views are acceptable and which are unacceptable, which is a direct threat to freedom of expression, and to our democracy.

Once we consider that most of the worst behaviours covered by the bill are already included under current law, the Council believes that this bill is far more of a threat to New Zealand than the activities it purports to protect us against.

New Zealand’s implementation of the International Covenant on Civil and Political Rights is being reviewed this year by the Human Rights Committee in Geneva. If this bill passes unamended, we expect the government will face a justifiably difficult grilling from other counties.

1
Crimes Act 1961 https://www.legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html; Search and Surveillance Act 2012 https://www.legislation.govt.nz/act/public/2012/0024/latest/DLM2136536.html; Summary Offences Act 1981 https://www.legislation.govt.nz/act/public/1981/0113/latest/DLM53348.html
2
Crimes (Countering Foreign Interference) Amendment Bill [PCO 26216/4.0] – Consistency with the New Zealand Bill of Rights Act 1990. Crown Law Office. 14 October 2024. https://www.justice.govt.nz/assets/Documents/Publications/20241115-Crimes-Countering-Foreign-Interference-Amendment-Bill.pdf
3
Standing Order 269. Standing Orders of the House of Representatives 2023. https://www.parliament.nz/en/pb/parliamentary-rules/standing-orders-2023-by-chapter/chapter-5-legislative-procedures/#c5.269
4
CO (23) 4: Proactive Release of Cabinet Material: Updated Requirements, DPMC, 29 June 2023. https://www.dpmc.govt.nz/publications/co-23-4-proactive-release-cabinet-material-updated-requirements
5
Information held by government, Cabinet Manual, chapter 8, 2023. https://www.dpmc.govt.nz/our-business-units/cabinet-office/supporting-work-cabinet/cabinet-manual/8-official-information-and-public-records/information-held-government
6
Find a publication, Ministry of Justice. https://www.justice.govt.nz/about/publication-finder/?Filter_Topic=765&Date=2024
7
Regulatory Impact Statement: Criminal justice proposals to counter foreign interference targeting New Zealand, Ministry of Justice, 2 May 2024. https://www.justice.govt.nz/assets/Documents/Publications/Regulatory-Impact-Statement-Criminal-Justice-proposals-to-Counter-FI-in-New-Zealand_UNCLASSIFIED-v2.pdf
8
Proactive release of Cabinet material, CabGuide, DPMC, 2023. https://www.dpmc.govt.nz/publications/proactive-release-cabinet-material
9
This is despite the fact that OIA withholding grounds technically only become relevant in response to a request received for that information, so citing them when withholding information from a proactive release is only a guide, not a decision under that Act.
10
Nats commit to OIA review – Labour won’t, BusinessDesk, 11 October 2023. https://businessdesk.co.nz/article/policy/nats-commit-to-oia-review-labour-wont
11
See: https://legislation.govt.nz/act/public/1961/0043/latest/DLM328761.html
12
See this article on former UK MP Tom Watson, in Prospect. 1 May 2024https://www.prospectmagazine.co.uk/ideas/media/phone-hacking/65891/did-the-murdoch-empire-hack-mps-for-commercial-ends Lord Watson (as he is now) has just won an apology and damages from Murdoch’s News Group Newspapers: https://www.theguardian.com/uk-news/2025/jan/22/lengthy-legal-fight-lands-blow-on-sun-publisher-but-shows-even-princes-have-to-settle How Harry and Watson forced News Group Newspapers to admit wrongdoing, Prospect, 24 January 2025 https://www.prospectmagazine.co.uk/ideas/law/the-weekly-constitutional/69110/how-harry-and-watson-forced-ngn-to-admit-wrongdoing
13
New section 78AAA(5)(a)(ii)
14
The Founding and Early History of the New Zealand Council for Civil Liberties, Lindsay Ferguson, 2021. https://nzccl.org.nz/the-founding-and-early-history-of-the-new-zealand-council-for-civil-liberties/ The Enemy Within, Marie Leadbeater, 2024. Published by Potton & Burton
15
Regulatory Impact Statement: Criminal justice proposals to counter foreign interference targeting New Zealand, Ministry of Justice, 2 May 2024. https://www.justice.govt.nz/assets/Documents/Publications/Regulatory-Impact-Statement-Criminal-Justice-proposals-to-Counter-FI-in-New-Zealand_UNCLASSIFIED-v2.pdf
16
Terrorism Suppression Act 2002. https://legislation.govt.nz/act/public/2002/0034/latest/DLM152702.html
17
New Zealand Bill of Rights Act 1990. Legislation Design and Advisory Committee. https://www.ldac.org.nz/guidelines/legislation-guidelines-2021-edition/constitutional-issues-and-recognising-rights- 2/chapter-6
18
Police house raid on investigative journalist Nicky Hager found to be unlawful, NZ Herald, 17 December 2015. https://www.nzherald.co.nz/nz/police-house-raid-on-investigative-journalist-nicky-hager-found-to-be-unlawful/DDUA4D76GKQLQTHQNTKFPYOJZQ/
19
Departmental Disclosure Statement, Ministry of Justice, 17 October 2024. Paragraph 3.5.1 https://disclosure.legislation.govt.nz/bill/government/2024/93
20
While the s78AA Crimes Act definition of “official information” is separate from that used in the OIA itself, it mirrors the OIA’s coverage by using the same schedules in the OIA and Ombudsmen’s Acts.
21
Report of Review Team on A Review of the Parliamentary Service Act to the Parliamentary Service Commission. February 1999. http://www.mdl.co.nz/site/mckinley/files/Roger%20Review%201999.pdf
22
NZLC R125: The public’s right to know : review of the official information legislation. New Zealand Law Commission. June 2012. Chapter 14. https://www.lawcom.govt.nz/our-work/official-information-act-1982-and-local-government-official-information-act-1987/tab/report
23
Submission: Parliament Bill, New Zealand Council for Civil Liberties, 8 November 2024. https://nzccl.org.nz/submission-parliament-bill/
24
Information held by these bodies would of course be protected by the OIA’s existing withholding grounds, as is currently the case for the NZSIS and GCSB. The investigative functions of the IPCA and IGIS seem well covered by the existing 9(2)(ba)(i) and (ii) withholding grounds, but the committee could always mirror the existing exemptions given to the investigative functions of the Ombudsman and Privacy Commissioner in the OIA’s section 2 definition of “official information”.

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