Goff Phil: Organised Crime and Anti-corruption Legislation Bill — In CommitteeText is incorporated into the Bound VolumeGoff Phil: Organised Crime and Anti-corruption Legislation Bill — In Committee[Sitting date: 21 October 2015. Volume:709;Page:7419. Text is incorporated into the Bound Volume.]Hon PHIL GOFF (Labour—Mt Roskill): The Labour Party will be supporting this bill including Part 1 because it does some things that are useful some things that in fact we should have done years ago and some things that are necessary for us to do—for example to ratify the United Nations Convention Against Corruption 11 years after we signed it. So if I was going to ask a question to the Minister in the chair the Hon Maggie Barry—if she is familiar with the bill; I am not sure that she is—the question would be after 7 years in Government why has it taken this long to pass the legislation needed to ratify the convention against corruption that we signed 11 years ago?There is nobody in this Committee I think who would not be in favour of some of the key provisions of Part 1. It talks about trafficking in persons and it makes the law tougher in that area. We know internationally what trafficking in persons is doing particularly in regard to the refugees but we know that it is also a factor in New Zealand particularly in some commercial areas such as the sex trade. Year after year when the US Department of State does a report on the upholding of human rights it is critical of New Zealand for not doing enough in this area. That might be a double standard on the part of the United States because there are a lot of criticisms we could make there but I think that we have to accept that criticism that we have not acted fast enough. I would add to that that we have not gone far enough in what we are doing here.This part of the bill also deals with organised crime and money-laundering. Organised crime and money-laundering is worth literally billions of dollars. There are billions of dollars each year being made by criminal enterprises out of money-laundering and out of organised crime and particularly drug trafficking. Of course we would support anything in this bill belated though it may be that deals with those areas.But what I want to say is that there is one huge area of weakness here and that is in relation to what is called a facilitation payment. If I was to ask any member of the National Government what the difference is between a facilitation payment and a bribe I would really like to hear what their answer is. Well the answer is actually set out unfortunately in the Crimes Act 1961 section 105C(3). It says that foreign bribery offence provisions set out in this part of the Act do not apply if “(a) the act that is alleged to constitute the offence was committed for the sole or primary purpose of ensuring or expediting the performance by a foreign public official of a routine government action; and (b) the value of the benefit is small.” I support David Clendon’s Supplementary Order Paper 76 on this bill to repeal that provision.The challenge I put to the National Government and the Minister in the chair is to explain to this House why a bribe is not a bribe simply because it is a small bribe. Of course it is a bribe. A bribe is a bribe and if it is designed to ensure or expedite the performance by a foreign public official of an act that is paying a foreign public official money that goes into his or her pocket not the Government of that country in order to facilitate something that you want from that Government. And that is a bribe. It should not be there and it is not part of the United Nations Convention Against Corruption.Let me read from article 16 of that convention: “Each State Party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence when committed intentionally the promise offering or giving to a foreign public official or an official of a public international organization directly or indirectly of an undue advantage for the official himself or herself or another person or entity in order that the official act or refrain from acting in the exercise of his or her official duties in order to obtain or retain business or other undue advantage in relation to the conduct of international business.” That article 16 of the United Nations Convention Against Corruption is very very clear. So my challenge to the Minister is this: how are we not acting in contravention of article 16 by saying: “You can do it to get the advantage as long as it is small.”? Because that is the thin edge of the wedge.We heard some really important submissions before the Law and Order Committee on this particular point and in particular we heard from Transparency International New Zealand we heard from the Human Rights Commission and we heard from other organisations. And these organisations which set out the standard in New Zealand which should be upholding a proud legacy of this country being one of the least corrupt countries in the world said that we were letting the side down that we were falling short of the standard that we should be setting and that we were way behind what other countries were doing.Let me refer to the Transparency International submission on this point because it makes what I regard as four really important points. It makes the point first of all that if you were to make a small payment to a New Zealand official there is no doubt about it that that would be a bribe. That would be a corrupt act. And the submission says that “a New Zealander who makes a ‘facilitation payment’ to a foreign customs official would face criminal penalties for making the same payment to an official here at home.” So why the double standard Minister? Why the double standard that if it is a crime in New Zealand it is not a crime if a New Zealander does that to a foreign official overseas?Secondly Transparency International makes this point. It says that we are perpetuating a corrupt system in those countries where our people are making those facilitation payments. It says: “Facilitation payments are [commonly] not recorded and go directly into the pockets of the corrupt government officials. Paying these low value bribes perpetuates a corrupt system; imposes additional costs on the host country’s companies and citizens and undermines efforts by the host country’s government to stamp out corruption in their public service.” So here we are putting ourselves up on a pedestal saying “This is how these countries should operate.” and then we are contradicting it by saying that it is OK for our companies to undermine the laws in those countries.Thirdly the submission makes the point that in this legislation before the Committee that we are debating now we are falling behind other countries that are like-minded countries. The United Kingdom has legislated against facilitation payments Australia is likely to follow Canada has prohibited facilitation payments and the United States is also moving in that direction and yet in this brand new legislation before the Committee we do not meet the standards of other countries that we would want to compare ourselves to like the United Kingdom and Canada.And fourthly Transparency International makes the point that you do not have to make facilitation payments to actually do business in these countries. It quotes from a 2009 business survey conducted by TRACE International which found that “76% of survey respondents believe it is possible to do business successfully without making facilitation payments given sufficient management support and careful planning.”So these are the concerns that were set out before the select committee and my question to the Minister Amy Adams who is now in the chair and is responsible for this bill is why we are putting forward a piece of legislation that is second-rate in response to facilitation favours. That is what this is doing. Has the Minister read the Transparency International submission? Does she understand that the Serious Fraud Office is against this? Does she understand that it is not only contrary to the United Nations Convention Against Corruption but also contrary to what the OECD and APEC promote as proper practice? So I want to know from the New Zealand Government why we have fallen short of the standards of the organisations that we belong to and that we sign up to and of the countries that we would respect in terms of their being countries that are opposed to corruption and bribery. Why are we falling short of those standards?