Foreign interference Bill 'repressive tool' to intimidate public: former minister
New Zealand is set to update sedition and espionage laws, making these as harsh as those of other Western states that are now gearing up for war with Russia and China.
A version of this story was first published by Consortium News
New draconian legislation criminalising foreign interference in New Zealand is effectively a tool for political repression and is the result of US political influence, according to a former government minister.
The Crimes (Countering Foreign Interference) Amendment Bill passed its first reading in Parliament on November 19, with the support of the two main political parties.
The Bill, which updates the nation’s existing Crimes Act 1961, introduces a new offence of committing an act of foreign interference, applying to those suspected of working on behalf of a foreign power.
To be prosecuted under the Bill, conduct must be undertaken for, or on behalf of, a foreign power, be covert, deceptive, corruptive, or coercive and meant to compromise protected New Zealand interests.
The offence will also apply to people who ‘should have known’ that they were being used by a foreign State to undertake foreign interference.
It also extends laws on publication of classified information and increases powers of unwarranted searches by authorities.
National interests include its democratic processes, its economy, rights provisions, as well as its defence and security. The maximum prison sentence would be 14 years.
The government claims the Bill helps ensure criminal law is fit for purpose to address harmful activity to New Zealand’s democracy.
However, former New Zealand junior foreign minister Matt Robson, who served in Helen Clark’s Labour coalition government, which lasted from 1999-2008, told In Context the legislation was effectively the reintroduction of old sedition laws inherited from the British colonial state. Those laws were used against communists, trade unions and indigenous communities.
“There were long, long battles to get rid of these intimidatory tools and now these are being brought back under a wave of scare-mongering across the Western world about China,” he said.
The broadness of the Bill puts the south Pacific nation in line with harsh espionage, sedition and whistleblowing laws of other Western nations now gearing up for war with leading BRICS nations, Russia and China.
Since the country’s interests are being tied with the liberal rules-based international order and US hegemony, there are concerns the Bill would further create a chilling environment, stifling those backing ties with China, or otherwise expressing support for emerging multipolarity and an end to spiralling militarism in the region.
Drafting on the legislation began in early 2023 under the Labour-led government. During Labour’s two terms in power leaders Jacinda Ardern and Chris Hipkins incrementally brought the country in closer alignment with the US’ policy of full-spectrum dominance in the region and with NATO. New Zealand is already a member of the Western Five Eyes intelligence-sharing apparatus.
Both leaders attended NATO’s annual meetings, risking a free trade agreement with China. Under the current National Party-led coalition, those moves have intensified, with Prime Minister Christopher Luxon signalling an intent to join the techno-military ‘Pillar II’ dimension to AUKUS, the Western anti-China nuclear submarine alliance.
“This is the Foreign Interference Bill and yet this Bill is coming through foreign powers,” Robson said.
“We're being influenced by foreign powers. Five Eyes meetings now cover so many of our ministers, the foreign ministers, defence ministers meet, the immigration ministers – they all meet.
“This is definitely Five Eyes coordinated. It didn’t originate in New Zealand. The language is from the NATO communiques… This is driven by the power that runs the Five Eyes, the United States.”
Addressing Parliament ahead of the vote, Justice Minister Paul Goldsmith said acts of foreign interference “often involved the use of new and widely used forms of technology and are intended to inappropriately manipulate our democracy, economy, academic institutions, and media”.
He added: “They are also being used to place undue pressure on individuals and our communities in order to control or stifle the exercise of rights and freedoms in New Zealand.
“Our intelligence and security agencies report that foreign interference targeting our democratic institutions largely takes the form of attempts to deceptively influence policymakers and undermine the independence of our domestic and foreign-policy decisions.”
Robson believes the Bill reflects New Zealand’s growing lack of independence on foreign policy and the extent to which the United States and its allies are now influencing domestic policy too.
He said the Bill would make society significantly less open, impinging on freedom of expression and association - key freedoms enshrined in the country’s Bill of Rights.
“It's not to protect me or you or ordinary people. It's to protect the state's narrative on any particular question,” he said.
“We have the intelligence services telling us there are Chinese officials threatening, blackmailing, intimidating, yet these are all crimes, they’re on the statute books already and nobody has been brought to court. You can also withdraw their ambassador, call in their ambassador - there are plenty of tools already. This bill is really about intimidating the New Zealand public.”
Over the past number of years, the New Zealand public has been fed NATO narratives through its media of China posing a threat to Western values as a strategic competitor, its actions hostile to the country’s democratic norms and provision of human rights. China remains the country’s top trading partner.
A primary vehicle for this message has been the New Zealand Security and Intelligence Service’s (NZSIS) annual ‘threat environment’ reports, first launched in 2023, which have warned of increased foreign interference as a consequence of intensified geopolitical competition in the region. The messaging and themes are being amplified by government ministers and the media, following the trend in other Five-Eyes nations.
The Australian Security Intelligence Organisation (ASIO) releases a similar annual threat report, which in February claimed Australia was facing its highest ever threat from espionage and foreign interference. It claimed a former politician "sold out" Australia to a foreign intelligence service and that the agency let the alleged spy ring know their cover had been blown.
The country brought in its own foreign interference laws modelled on the US in 2018.
In June, a Parliamentarian report in Canada, based largely on claims by the Canadian Security and Intelligence Service (CSIS), said unnamed MPs were “semi-witting or witting” participants in foreign interference and pointed to involvement by China.
Repeating themes of its Five Eyes partners, this year’s NZSIS report emphasised the biggest threats to national security came from within, with intentional or unintentional harm caused by people in positions of trust in public or private organisations posing a risk to national security.
Espionage, unauthorised disclosure of information and foreign interference were flagged as serious concerns.
"What we mean by insider threat is an individual who may have access to an organisation's information, their systems, their facilities who can then use that trusted position to act in a way that harms the organisation," NZSIS Director-General of Security Andrew Hampton said in the report.
Critics like Helen Clark have previously pointed to the partisan nature of reports’ contents, designed to push a more securitised political environment, including signing up to AUKUS.
The foreign interference Bill can be seen part of that emerging architecture.
Absence of intent
The Bill’s distinction between intentional and reckless, as well as leaving it up to interpretation as to whether the accused “ought” to have known they were engaging in conduct with a foreign power, alarms Robson.
The Auckland-based lawyer says the danger of being convicted even in the absence of intent to commit any offence will leave academics, politicians, journalists and others second-guessing their words and actions and the propriety of whom they are talking with.
Robson says the Bill will create the very issues the government states it seeks to tackle and it will not address interference from the likes of Israel or the US itself, but be directed at countries outside the Western sphere of influence.
“An academic who publishes something which is against government statements - and governments in New Zealand have been known to lie - may think twice about publishing a critical article, perhaps worry about a research trip abroad, not wanting to be labelled as influenced and dodgy,” he said.
The New Zealand Ministry of Foreign Affairs (MFAT) and Ministry of Justice jointly briefed foreign ambassadors in November on the Bill, reassuring them of their diplomatic protections.
A briefing document stated that expressing views and exercising any freedom in New Zealand would not in itself constitute a criminal act under the Bill, something the NZSIS has been keen to argue.
It listed three types of ways a criminally liable person could benefit a foreign power under the new law – supporting its intelligence agency, or enhancing its political, economic or military capacity or influence, or advance its coercive influence over people in or outside of New Zealand.
The Bill also more broadly defines who owes allegiance to New Zealand, which goes beyond New Zealand citizenship, and who is therefore liable for prosecution.
The briefing document says those who “previously owed allegiance to NZ (for example, living in New Zealand) and who’s family or living arrangements indicate an enduring connection to New Zealand” can be prosecuted. The person charged need not be living in New Zealand at the time of the offence.
The Bill expands the number of public entities covered by legislation, puts military tactics, procedures and techniques within the scope of existing laws, and extends the offences to cover “formerly government information”, deemed prejudicial to the security or defence of New Zealand.
The Bill also extends existing warrantless search powers contained in the Search and Surveillance Act 2012, allowing authorities to investigate alleged offending.
Bill risks rights breaches
Chairperson for the NZ Council for Civil Liberties, Thomas Beagle, told In Context he also had concerns that legitimate political activism could fall under the scope of providing assistance to a foreign power in damaging New Zealand’s interests.
“While this theoretically only applies when aiding a foreign power, it seems that this could also include working internationally with members of political parties that are aligned on issues of interest to New Zealanders,” he said.
“An obvious example would be people engaged in environmental protection who work with people overseas who are also involved in environmental politics, and this could be, and has been, argued to harm New Zealand's economic interests. As such it obviously risks being in breach of the government's obligations under the NZ Bill of Rights Act to protect freedom of expression and freedom of association. New Zealanders clearly have the right to differ with the government of the day on what New Zealand's interests are.
“At a minimum the bill should be amended to clearly exclude any such limit on the ability of New Zealanders to express themselves and work for political change.”
His organisation was concerned the legislation would also increase warrantless search powers by police.
“While not wanting to defend the current search warrant system too strongly, it still provides some brake on the misuse of search powers and shouldn't be discarded lightly,” he said.
Ministry of Justice responds
The NZ Ministry of Justice was asked to respond to Robson and Beagle’s concerns.
When asked whether the law amendments could be used unduly against those holding heterodox views or maintaining legitimate relationships with foreign groups and BRICS nations like China, Ministry of Justice Deputy Secretary, Policy, Caroline Greaney, told In Context:
“The Bill sets out that the Attorney-General must consent to prosecutions for the new offences as they involve matters of national security and foreign relations.
“The Attorney-General’s consent to prosecution is already required for the offences being amended by the Bill, including the wrongful communication of information offences and espionage.
“This provides an extra check in the criminal justice process for these serious offences and ensures that the circumstances of the prosecution align with the statutory purpose of the Crimes Act.”
New Zealand’s Attorney-General is right-wing Defence Minister Judith Collins, one of the most strident proponents of joining AUKUS and aligning with the US military posture in the region.
Greaney said the Solicitor-General would ultimately weigh up whether prosecutions against journalists who published unauthorised government information was in the public interest, but declined to be drawn on whether the Bill could make it harder to argue a public interest defence in court.
“As with all offences in New Zealand, the decision to prosecute must consider the public interest. The Public Interest Test is set out in the Solicitor-General’s Prosecution Guidelines which are published by the Crown Law Office,” she said.
“The Guidelines include some examples of public interest considerations for and against prosecution, and this decision will vary from case to case depending on the unique context of the situation.”
The Bill is now open to public submissions to Parliament’s Justice Select Committee until January 16, 2025.
I haven’t read Maire Leadbeater’s recent book on state surveillance in Aotearoa yet but the cruel irony of this bill is that it’s designed by our own oligarchs at the behest of the US warmongers to stop working class people challenging their power over us. Both Maire’s parents and her brother were life long victims of state surveillance and repression. https://www.pottonandburton.co.nz/product/the-enemy-within/
I’ve an SIS file of my own, I’ve never asked for or seen a copy but reference to it in other comrades files is evidence enough. My crimes include opposition to capitalism, the Vietnam war, the slaughter of thousands of Chileans, South Africans, Palestinians, organising resistance to the privatisation of public transport, building worker controlled unionism, supporting Tinorangatiratanga for tangatawhenua, among other anti-social behaviour.
In the 1951 lockout of waterfront workers- not coincidentally at the same time as the U.S. invasion of Korea and worldwide McCarthyism, it was a crime to feed unionists families, to print communist newspapers.
It can and does happen here. No one knows better than yourself Mick. Your courage and resolve in fighting back is a flag to the fightback we all must share in. No one’s coming to save us. Kia kaha.
What a joke. The is the colonialist regime talking. The same people who will do anything they are ordered to do by London, Washington and Canberra, and will do nothing which does not meet with approval from the aforesaid foreign capitals. The regime is on borrowed time, there is nothing that its foreign masters can do to prolong its detestable existence, and we have no need of foreign helpers to bring it to a fit end. Therefore the Crimes (Countering Foreign Interference) Amendment Bill is just a waste of Parliament's time.