Clendon David: Organised Crime and Anti-corruption Legislation Bill — In CommitteeText is incorporated into the Bound VolumeClendon David: 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.]DAVID CLENDON (Green): Could I begin by thanking the Minister of Justice for that contribution. It was helpful. I was interested in her last comment about any party voting against this bill. To my knowledge no party is intending to vote against this bill. The Greens are certainly not. The bill does some necessary and useful things. It does strengthen our position in terms of organised crime money-laundering people trafficking and these sorts of unfortunate activities that none of us could possibly support. So we are quite happy to continue to support the bill.It is an OK bill but it could be a very much better bill and it could be more likely to achieve one of its key purposes if Supplementary Order Paper 76 in my name was adopted and passed today. Why do I say that? The report back on the bill from the Law and Order Committee says: “The bill would enhance New Zealand’s compliance with a number of international conventions and when enacted will allow ratification of the UN Convention against Corruption (UNCAC)”. The fact that we continue to have on our statute book a “get out of jail free” card in the Crimes Act in a sense around legitimating facilitation payments compromises our ability to stand tall and say: “Yes we are compliant with UNCAC and therefore we can hand on heart ratify that document.”I think it is worth referencing Supplementary Order Paper 76. It is very simple. It would simply insert one extra line into the bill which would be to repeal section 105C(3) of the Crimes Act. What the Crimes Act does in that sense is in section 105C(2) it says: “Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give a bribe to a person with intent to influence a foreign public official in respect of any act or omission by that official in his or her official capacity …”—in other words if anyone pays a bribe. Seven years is not a trivial sentence. I think our distaste for corruption at every level is reflected in the fact that that is quite a severe sentence—potentially up to 7 years’ imprisonment.Unfortunately section 105C(3) goes on to say: “This section 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; and (b) the value of the benefit is small.” In other words in everyday language it excludes facilitation payments because they are only little bribes. I appreciate that there is a distinction between that and paying a bribe to a foreign official in order to secure a contract to export to a country for example. That is barred. That is banned. Nobody allows that. That is illegal. What this does though is play around at the margins and say: “OK having secured my licence to export I’ll now pay a foreign official a bribe in order to get my goods across the border a little more quickly and to get them off the wharf and into market a little more swiftly.”Let us reverse the situation. Let us imagine that foreign Governments have similar provisions on their books that allow foreign business people to come to New Zealand and behave in that way and to slip one of our customs officers a couple of tickets to the rugby and a hundred bucks’ worth of beer just to make sure that their shipment got ahead and was first in the queue. We would not tolerate that and nor should we. So why do we legitimate that sort of action in a foreign country by our business people who are operating internationally? There are several reasons why we ought to remove that provision from the Crimes Act embed that change in this amended legislation and therefore make it a better piece of legislation a much more robust one and a much more positive one. It is the right thing to do.New Zealand stands tall as a country that is perceived as having a very very low level of corruption. That gives us an ability to make moral statements on the world stage. We are perceived as being a country with very low levels of corruption and I think that is legitimate. We are not squeaky clean and we are not perfect but the corruption that exists is at a very low level. Generally there is a very very low tolerance for corruption in the New Zealand community in society and in the business community. Our abhorrence for corruption is I believe one of the reasons why New Zealand routinely rates very highly as one of the best countries in the world to do business in. Business people can come here and know that they are playing on a more or less level field and that they cannot be outbid by someone who is paying off an official to get a resource consent to get goods across the border more swiftly or to get permission to do something. This gives us the ability to encourage businesses to come here to do business and know that the legal landscape is fairly robust and will protect their interests and protect them against corruption.The point has been made already that Transparency International has led the charge on this in terms of encouraging us to remove this exemption. I acknowledge—and the Minister was quite right—that this amendment bill we are debating today does not add a negative but what it does do is it misses an opportunity to take away that blot on our statute book. I absolutely believe that that section in the Crimes Act is a blot on our statutes. It legitimates illegal activity overseas. I think that dancing around the margins and talking about undue benefit is relying on semantics and is simply splitting hairs.The reality is we ought not to be indulging in this sort of behaviour. We certainly ought not to legitimate that behaviour by our business people overseas. One of the arguments I have heard is “Don’t be naive. It’s the way of the world.” and a couple of our key export markets—typically China and India—get named as being countries with a culture of corrupt practice. You have simply got to pay the bribes to get your business done there. It is also true however that the Governments of those two countries have come out very strongly in their wish to drive that culture out of their business communities and out of daily practice. New Zealand is held up as a good example of a country that does not tolerate corruption. We go to China and we go to India and if our exporters engage in this sort of behaviour where then does it leave their Governments in their attempts to drive corruption out of their domestic business environment? It would be a case of: “Hey New Zealanders do it so it must be OK.”We can stand proudly. I believe that if we remove this provision if we make it illegal for our business people to operate in this way and offer bribes then as a Government we can have a Government to Government dialogue and say: “Hey guys you need to crank up your act. You need to make sure that our business people are not disadvantaged.” Would it not be great if we got a reputation as whistleblowers who would not tolerate corrupt practice? That would be a very strong statement New Zealand could and should make.I confess that it puts our business people in a difficult position but I believe that if we go to market with good quality products and good services and if we stand on an honest and good ethical base and legitimate that in our legislation it would be to the advantage of our business of “New Zealand Inc.” and our progress as a country economically as well as socially.The Minister made the point that Australia does not have an absolute ban on facilitation payments and she is right—it has not yet gone to the point we would like it to. It is also true that the 2012 UN review of Australia’s position in relation to the United Nations Convention Against Corruption called for the Australians to have a really hard look at that. It implied—and I do not think I am overselling it here—that the UN sees a dilemma in Australia’s continued willingness to accept the payment of facilitation payments by its business people. It just does not sit well. It does not mesh with Australia’s position of having ratified the convention.We will face the same dilemma. Why would we want to do that? Why not put ourselves in a very clean position and say that we will not tolerate the payment of bribes be they large or small and we will not tolerate behaviour by our business people overseas that we would not tolerate here. That is a clean and a straightforward and an honest position. It is a principled position and it is one that I do believe would advance our business interests in the long term.We have the examples of the UK and Australia. The British position is that it will not allow facilitation payments.It will not allow its people working abroad to engage in that behaviour.The Minister made the point—and quite legitimately—about unintentional criminalisation. I do not believe that a New Zealand business person operating overseas intentionally pays a bribe if they hand over some cash thinking: “Oh that is the way they do business here.” I do not believe that any New Zealand prosecutor or the police would be interested in taking that person to task on that. Certainly they might give them some information and they might advise them against that course of practice but I do not believe that we will criminalise our own if through naivety they did that.