Ardern Jacinda: Organised Crime and Anti-corruption Legislation Bill — Second ReadingText is incorporated into the Bound VolumeArdern Jacinda: Organised Crime and Anti-corruption Legislation Bill — Second Reading[Sitting date: 20 May 2015. Volume:705;Page:3510. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): It is my pleasure to speak on the Organised Crime and Anti-corruption Legislation Bill. It is a bill that has been some time coming. It was first brought to this House by Judith Collins when she was the Minister of Justice. We were told that it would be ready in 2013 but it came to us in 2014. Needless to say this is an area that of course is crucial to all parties in this House. It is I guess important to us as a nation that we continue to uphold our standing in the international community for doing our bit in this area. It does require cooperation and collaboration if it is going to function properly. Labour for instance recognised that when it set up the Organised and Financial Crime Agency within the policein I believe 2008.But it is not just about reputational issues abroad. Obviously making sure that we keep our own house in order is incredibly important. I just wanted to use these introductory comments as an opportunity to point out that the Serious Fraud Office is one of the best mechanisms that we have to make sure that we maintain our own domestic high standards when it comes to fraud bribery and corruption. That is an organisation that has in the past few Budgets now sought additional funding to do its job. It warned the Government for instance of its concern that there might be additional issues around corruption as a result of the massive amount of infrastructural rebuild occurring in Christchurch. That was a bid that was declined. Instead it was just left simply to do presentations around the importance of being vigilant around corruption in Canterbury. Equally it has warned that it is not able to prosecute as many cases as potentially it would like to. It is something I thought prudent to raise—that we do need to make sure that we keep our own house in order even though we are primarily discussing today our international obligations in implementing this legislation.Transparency International is one organisation that does a very good job of keeping in check where New Zealand sits relative to other countries. We have a branch that operates in New Zealand but it is part of a wider reporting regime that takes into account what kinds of mechanisms New Zealand is implementing to make sure we remain a transparent corruption-free country. We have fared very well in the past. We had a slight slip in the last measure. We are at No. 2. No one wants to celebrate coming second. Denmark pipped us at the post. In part I believe it has been flagged that the fact that we have not quite implemented some of these obligations has been part of the reason why. That is because this is an omnibus bill. It implements proposals including around the all-of-Government response to organised crime which it started back in 2011.But it also aims to improve New Zealand’s ability to cooperate with international partners. It ratifies the United Nations Convention Against Corruption it implements the US and New Zealand Agreement on Enhancing Cooperation in Preventing and Combating Crime and also enhances New Zealand’s compliance with a number of other international conventions including the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions which I think is something that Transparency International is particularly interested in.There were 20 submissions to this bill. One of the ones though and the area that I want to focus on the most—because there are a number of really important points raised—does sit around a point that the Minister touched on and that was the facilitation payments exception that exists in this law. Labour overall is supporting this bill; I should point that out. But we do have some reservations around the fact that we do still have a facilitation payments exception in this bill.I thought making reference to a bit of the background on this and also to the submissions that were made against it would be useful for the House. New Zealand’s foreign bribery offence contains as the Minister said a very narrow exception for small payments to be made to foreign public officials for the sole or primary purpose of ensuring or expediting the performance of a “routine Government action”. These are not for instance the kinds of things that you might pay as part of tariffs or as part of customs duty or anything like that. These are direct payments to Government officials or public officials to help facilitate and expedite a particular activity.I think we should be very clear that in making this payment you are expediting yourself over and above someone else who has not made that payment. I think that is clear in the way it is described. The exception though states that for such a payment to be lawful in New Zealand law it must be small. I would be interested to hear from members of the committee whether or not there was a discussion over what the definition of “small” was. Was it relative to what the payment was being made for? Was it sized in any way? Will you make a bigger exception around what “small” is depending on the size of the country or the activity? It must be small for an action within the scope of the official’s ordinary duties—so obviously if you are paying a port inspector it has to be around port issues—and not involve a decision about awarding new business or continuing existing business. So it is about facilitating business that would otherwise occur.Examples of facilitation payments include “small payments relating to the grant of a permit or licence the provision of utility services or loading or unloading cargo.” Again it would be really useful for the House if members—I believe that the Hon Phil Goff was on the Law and Order Committee; perhaps he could share with us some of the examples that might have been raised at the committee because I do think that it is a fine line. It is a fine line and who is making the judgment over what is routine what is “small” and where you decide there is a difference between—[Interruption] Either Jonathan Young has a contribution that he will hopefully make in the House or he is talking to himself; I am not sure. But hopefully at some point he might make a contribution and talk me through some of ways that were discussed by the committee.There were a number of submissions—I believe three—that were quite explicit about this point in the bill and had concerns about it including I believe the Human Rights Commission and Transparency International New Zealand. Apparently these submissions were fairly similar in the concerns that they raised. Their points were these—and I think they are good points so I want to reiterate them and highlight them in this House. Their points were that such payments are bribes regardless of their size. If they are not something that is applied universally and equally to all applicants then how is it not considered a bribe? The conventions that we are party to do not distinguish between facilitation payments and bribes and therefore there was a concern that by having this exception we might actually fall foul of the conventions we are trying to make sure that we are ratifying in this law. Also thirdly the OECD and the Asia-Pacific Economic Cooperation also encourage businesses to eliminate the use of such payments.I noticed that the Minister in her speech said that these kinds of payments exist in comparable countries to us—she referenced Australia and the United States. They do not exist in the UK. It has explicitly ruled out being able to use exemptions like these—obviously for good reason. In the response from the ministry it has said that it does not believe the exception is likely to fall foul of the conventions. How do we know? Were we able to seek advice beyond our ministry officials on whether or not we would actually fall foul of those conventions by having this exception? The ministry also raised that in the UK they have made the point that they are unlikely to prosecute for small payments. It is a very big difference to say you are not going to prosecute small payments versus creating an exemption in law that explicitly says you can do it. One is much more permissive than the other.So I do think that there are still considerable questions to be answered about this part of the bill which really does let down what is otherwise I think a very useful bill and one that we should all be supporting not only for our international reputation but also to make sure we spread best practice domestically as well. Thank you.