Goff Phil: Third Readings —Text is incorporated into the Bound VolumeGoff Phil: Third Readings —[Sitting date: 04 November 2015. Volume:709;Page:7714. Text is incorporated into the Bound Volume.]Hon PHIL GOFF (Labour—Mt Roskill): The Labour Party supports the 15 bills that are before the House for third reading today which derive from the Organised Crime and Anti-corruption Legislation Bill. Of course the Labour Party would strongly support legislation that is designed to deal with offences like corruption and like organised crime.Organised crime is huge in this country. The methamphetamine market by itself is estimated to be worth $1 billion within New Zealand—money going into the pockets of organised crime and gangs. Money-laundering in this country is estimated at an even higher level: $1.5 billion. We have residual problems in human trafficking. All of these problems are domestic problems but they are also international problems and it behoves us to cooperate with like-minded countries overseas and international organisations to suppress that sort of criminal activity. So we support it but we do not support it without criticism of the way that the Government has handled this measure.For a start it has taken so long to get these measures—outlined by Minister Tolley and mainly measures that make a lot of sense—before this House. We should have acted years ago. Judith Collins as Minister of Justice stood up in 2012—3 years ago—and said: “I will have this legislation before the House and through the House by the end of next year.” Well we know what happened there: Judith Collins herself got caught up in a scandal involving Oravida and it did not happen. But this bill itself represents the tardiness of the Government in dealing with the problem for which we have been criticised internationally. We signed the United Nations Convention Against Corruption 11 years ago—11 years ago. It does not come into effect until we legislate to bring it into effect to do what has to be done under it and then we can ratify it. My question to the next National speaker is why has it taken this Government 7 full years to get to the point of allowing us to ratify the United Nations Convention Against Corruption if this legislation is so important? And I believe that it is.There is a key weakness in this bill too that I now want to focus on. It was a weakness that was raised before the Law and Order Committee by major organisations that we would respect: Transparency International the experts in this country on measures that a country needs to take to prevent corruption and to prevent bribery; the Human Rights Commission; and the Victoria University of Wellington School of Government. All of them drew to the Government members’ attention a fatal flaw in this legislation which tries to distinguish between a bribe and a bribe on the basis of the size of the bribe. That distinction is kept in the Crimes Act. It is section 105C(3) of the Crimes Act. It says that the foreign bribery offence “does 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;”. I am sorry—that is what bribery is. You pay the official to carry out the action; that gives you an advantage. Secondly: “(b) the value of the benefit is small.”Amy Adams the Minister of Justice continued that false analogy. It is OK to make a bribe as long as it is small she said. She said—Jonathan Young: She didn’t say that.Hon PHIL GOFF: She said let me quote: “It is in the usual course of activity to make payments as long as the payments are small.” Well I am sorry—bribery is akin to pregnancy. You cannot be a bit pregnant and you cannot exercise a corrupt act in bribing an official and say: “But it’s only a bit. It’s a small bit not a large bit.” That distinction is not recognised in the Convention Against Corruption nor is it recognised by like-minded countries. The UN convention makes it clear that the corrupt act is giving yourself undue advantage by making a payment to an official which ends up in that official’s pocket. That is what the UN convention says and this legislation does not come up to the standard set out in the UN convention.Not only that but it is contrary to what the OECD requires of us. The Minister mentioned the OECD and how these bills enhance compliance with the OECD anti-bribery convention. But actually we do not do what the OECD says we should be doing because the OECD says that we should not be making facilitation payments. It does not come up to the standard of APEC. That is an organisation that we are a regular attendant at and we come up to its standards in most effects but APEC says that businesses should eliminate this practice and we legislate specifically to allow it. APEC says to eliminate it OECD says to eliminate it and we legislate to allow it. The Serious Fraud Office and Business New Zealand run training programmes to allow New Zealand businesses to operate in overseas countries without making facilitation payments. Both of those organisations recommend against facilitation payments but this legislation explicitly allows them. And I have mentioned the United Nations Convention Against Corruption.What really upsets me about this legislation is that there would not be a member in this House who is not proud of the fact that year after year New Zealand is rated as one of the two least-corrupt countries in the world. We deserve to be proud of that accolade. That accolade is given to us by Transparency International but Transparency International railed against what we were doing in this legislation. And I want to quote the four key points that that organisation makes. They make the first point that it would be illegal to make a facilitation payment to an official in New Zealand. So why is it not a double standard that the same business that would be committing a crime in New Zealand to make a facilitation payment to a customs official here is not committing a crime if they do it overseas?Secondly they make the point that allowing facilitation payments lets us perpetuate corrupt systems abroad. And I want to quote their submission: “Paying these low-level 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.” But our legislation explicitly allows companies to do it.Thirdly Transparency International makes it clear that we are falling behind like-minded countries. The United Kingdom Bribery Act 2010 prohibits facilitation payments. It does not make an exemption for them as our legislation does; it prohibits them. Canada has done the same thing and the United States and Australia are going in the same direction. We are the odd one out in that grouping of countries who would claim to be amongst the least-corrupt countries in the world.And fourthly Transparency International makes the point that you do not have to make facilitation payments to do business in these countries. And it quotes the 2009 business survey by TRACE International that found that more than three-quarters of businesses said that with proper management they did not have to go down the track of making facilitation payments. An outright ban in this legislation would back up all of the organisations that have told us that there is no place for facilitation payments. It would remove doubt and it would provide clear direction to businesses but this Government in its weakness has failed to put that provision in this legislation which would otherwise be a perfectly good piece of legislation.