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): I would just like to make some further comments about this bill and this part. As I said earlier it is an OK bill. It could be a very good bill if it adopted Supplementary Order Paper 76 in my name and inserted those words about repealing section 105C(3) of the Crimes Act.I would like to respond to one or two comments that Mr Seymour made in his contribution. Firstly he talked about what I think the Minister of Justice described earlier as unintentional criminalisation. He told us a cautionary tale of an innocent abroad who was coerced or intimidated or somehow persuaded to make a payment to a corrupt public official. No doubt that goes on. We hear many stories of people being stopped in vehicles and obliged to pay a “road tax” which is actually going into somebody’s pocket. Why this bill would not capture that sort of activity abysmal though it may be is contained in the section of the Crimes Act that I quoted earlier which very clearly and specifically puts this matter about facilitation in the context of doing business. It talks about obtaining or retaining business or obtaining some improper advantage in the conduct of business.Mr Seymour talked about operating in the real world—the practical matters that actually happen. The scenario he created is not one that would occur. There is no way I believe that in New Zealand we would prosecute a person who had been unknowingly naively the victim of a corrupt official. We would prosecute—and I think we ought to prosecute—people who go abroad and offer to make these payments in order to progress their business in a way that gives them some advantage. So I think that objection to the bill is not well-founded because the context for the change is clearly spelt out in the context of doing business abroad.Mr Seymour also quoted briefly from Transparency International’s submission. He did not quite get it right. I acknowledge that he is a busy man. He must have read it in some haste. He told us that the UK prohibits facilitation payments. That is correct. He also told us that the UK Government is not enforcing that prohibition. That actually is not the case. To quote from the letter he referenced the submission from Transparency International: “The UK’s Bribery Act 2010 prohibits facilitation payments and that these have always been illegal under previous UK corruption legislation.” It goes on to say that although the UK has a low level of enforcement it is advised that the UK will soon take action against an international organisation in the near future. I paraphrase slightly. But it talks about a low level of enforcement which is a very different thing from not enforcing.It is entirely appropriate. I would not suggest for a minute that if we do pass this legislation and remove the exemption the next day we charge out mob-handed and start prosecuting people en masse. That is not the way laws happen. We like to think perhaps that in this Chamber everybody is hanging on every word and that immediately that we make law the public immediately know about it and understand it. I think the UK’s approach—I am inferring this—of a low level of enforcement would be entirely appropriate initially because we are working against a very long period of improper action. It would take time for the business community to get its head around the fact that this is no longer acceptable or legal.So I think that the UK approach would be the appropriate one—have a low level of enforcement but then pick a good fight find somebody who is overtly and on some large scale breaking the law breaking the prohibition and making these payments as a matter of course. Go after a big target and knock them down. That would send a message to the people who might otherwise engage in this sort of activity illegal as it is in the UK. So I do think that Mr Seymour’s objections are not well-founded and I do stand by the Supplementary Order Paper. I think it would make this better law.Mr Seymour also mentioned the Australian situation. Certainly it is moving I think closer to prohibition. In terms of other organisations the United States has been complimented by the OECD because it is also moving towards a position of prohibition of eliminating these facilitation payments. APEC is another body that has spoken out against them and said that countries ought to move away. The opportunity here is for us to show something called leadership. Let us for once be at the head of the pack. Let us lead the way and take a clear principled unequivocal position.