Adams Amy: Organised Crime and Anti-corruption Legislation Bill — In CommitteeText is incorporated into the Bound VolumeAdams Amy: 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 AMY ADAMS (Minister of Justice): I did want to take a call on this main part of the Organised Crime and Anti-corruption Legislation Bill and just bring us back to the core purpose of what this bill is actually intending to do which is significantly enhance the way New Zealand deals with responds to and prevents both organised crime and corruption. The matters within the bill are issues that New Zealand takes incredibly seriously. Let us just remember that this bill is about ensuring our protection against organised crime against human trafficking and against corruption is stronger than it will ever have been.If you listened to the last few speakers from the Opposition you would perhaps I think take a few inappropriate conclusions from their contributions so I just want to get a few things very clearly on the record. The first is that facilitation payments are not being authorised by this bill. They have been lawful in New Zealand for many years. The Crimes Act has provided an exemption for the payment of facilitation payments for many years. What this bill does is actually narrow that. We are narrowing the exemption and making it much more controlled and much tighter. We are ensuring that it can be applied only in situations where no undue benefit accrues to the person involved and in situations where businesses must record and keep detailed records of any such payments made to ensure that we get the right balance I believe between ensuring proper high standards of business practice in New Zealand and protecting innocent New Zealanders against unintentional criminalisation. That is a serious threat and we have worked through this in some detail.I am going to come back to that point but I want to make one other point very clear: this bill is in every way compliant with our international obligations. I heard most of Mr Goff’s contribution and he I think left this Committee with the impression that somehow this bill would make us non-compliant with the United Nations Convention Against Corruption—it does not; it is entirely compliant with that—and that in some way it would make us non-compliant with the OECD anti-bribery convention. It does not. We are entirely compliant. I can also make the point that such facilitation payments are also legal in both the United States and Australia. So this idea that somehow we are doing something that the rest of the world has turned its back on and that all of our international partners have rejected is quite simply wrong.The other point that I would make actually is that Transparency International New Zealand the Serious Fraud Office and Business New Zealand got together in 2014 and put up quite good seminars for businesses on how they should properly deal with facilitation payments. So this is not a new issue. It is one that has been in the lexicon of our oversight agencies for some time and can I reiterate: this bill makes the exemption narrower and more tightly controlled.Let me just walk through the thought process that I followed when I was looking at this issue because on the face of it you wonder why any sort of payment might be able to be permitted. We have to be incredibly careful but there are situations when a New Zealander quite lawfully going about their business will be in a situation where a foreign public official effectively says to them: “Look you can go through the traditional track or you can have a priority service for the payment of a small fee.” That could be an entirely lawful properly offered service. You are not receiving any material benefit; you are paying for a service in the normal course of business. It is a small payment and you have no way of knowing as that innocent New Zealander what is happening behind the scenes. You have no way of knowing whether that payment is being properly accounted for returned to the Government and properly paid tax on or whether out the back someone is pocketing it.I am not going to see innocent New Zealanders who honestly believe they are paying a reasonable sum for a priority service that does not give them an undue benefit and is not a large amount of money suddenly become criminals.The protections that we have put in place around that I think are very important. The first is that it must be a small payment. We are talking about very small amounts of money. The second is that it must be for a service provided in the ordinary course of business. So let me give you an example. If you were to arrive at an immigration counter and you could stand in a long line while you have—I do not know—screaming children or you are ill or whatever or you could pay US$50 and go through the fast-tracked line then that is absolutely an ordinary course of business transaction. An immigration official is offering you an immigration service that is absolutely to be expected in the ordinary course of business. It is a small payment—and these are examples that do happen—and you receive no particular material benefit. You were going to go through immigration anyway and you are simply going through a priority queue. That is quite different from a situation where you make a payment to receive a contract being awarded to you to stop someone else getting a contract or where you receive a material benefit.I absolutely will stand firm against New Zealand corruption either domestically or internationally but I am very concerned—and I can think of many situations where innocent New Zealanders could find themselves in that situation of paying for what looks on the face of it to be a perfectly valid service that does not give them any particular benefit and then finding that because that official was pocketing it out the back they have suddenly become a criminal. That is not the sort of thing that I am prepared to oversee.The other thing is that actually as I said facilitation payments have been lawful in a much much wider context in New Zealand law for many years and we are assiduous in overseeing them to make sure they are not abused. That will continue to be the case but as I have said under this bill not only will we continue to be assiduous in ensuring that it is not exploited but we have a much narrower selection of areas where it can be applied and businesses in New Zealand will now be required to quite clearly account for it. I did spend quite a bit of time looking at this issue working my way through it and satisfying myself that it was the right balance between properly protecting New Zealanders against a situation that they can have no control over and no way of understanding and that we would not be passing a law to unintentionally criminalise innocent New Zealanders and ensuring that we are tightening up any misuse of that provision.Let me just conclude by reinforcing that this is entirely compliant with the United Nations Convention Against Corruption and does not in any way fall foul of the OECD convention against bribery. I absolutely understand the need to be very careful in this regard but I certainly speaking for myself am absolutely confident we have that balance right.This bill is an improvement on the law as it stands and any party that votes against it will be voting effectively to keep a much wider exemption and a much wider hole for people to drive through and will be rejecting the additional protections that this bill will bring into force. Thank you.