Yesterday, under cover the the biggest political fight of the year, National quietly - covertly, even - introduced anti-foreign interference legislation. The bill is the product of a years-long work-program aimed at countering shit like this and this, and there's unquestionably a need to do something to counter foreign states' attacks on the democratic rights of kiwis. Unfortunately, the government's preferred solution - the creation of two very vague new criminal offences - goes too far, and will criminalise basic democratic activity such as protests. And under a straight and direct reading of the law, it would have criminalised most of our historic protest movements.
Much of the bill is unproblematic, if a bit weird. Tweaking the law of parties in relation to espionage offences to fill a gap? Fine. Changing existing offences around wrongful retention and corrupt use of official information to refer to "relevant information" instead so as to cover bodies excluded from the OIA? Fine, but there was another solution to that - include those bodies! - which of course the government didn't even consider. Amend the definition of "information" so that it "includes information about military tactics, techniques, or procedures"? Weird status-driven flex, but as those things are information and so already included in the definition, harmless as well as pointless. And the new offence of "commission of imprisonable offence to provide relevant benefit to foreign power" seems to target exactly the sort of problems linked to above, and not be problematic (it may be pointless, because foreign agents won't be deterred in the slightest by it, but the existence of the law isn't a problem).
The problem lies in new section 78AAA, improper conduct for or on behalf of foreign power. This makes it an offence to engage in improper conduct for or on behalf of a foreign power when you know (or in the government's opinion, ought to know) that you are acting on behalf of a foreign power, with the intention of or being reckless as to whether it compromises a "protected New Zealand interest". If that sounds vague, it gets worse when you start unpacking the definitions:
- "Foreign power" means essentially a government or agency, so that at least is OK. Neither the UN or Amnesty International are "foreign powers" in terms of the law. But...
- "acting for or on behalf of a foreign power" includes doing things that are merely "instigated by" or "with the agreement of" a foreign power. Does the government believe that all protest stems from nefarious foreign actions? Did a foreign PM give your protest photo a "like" on Facebook? Congratulations, you a criminal! (more on this later);
- "protected New Zealand interests" include not just important things like lives and public safety, the functioning of our elections and government and the democratic and human rights of our citizens, but also state bullshit like "international relations" and (more worryingly) "the economic well-being of New Zealand". Does your protest offend a foreign government, or a powerful industry lobby group? You're compromising those interests, and a potential criminal.
- "improper conduct" isn't just criminal or corrupt (indeed, actual crime seems not to be part of its definition at all), but instead conduct which is "covert", "deceptive", or "coercive". And here's where it gets nasty, because the Regulatory Impact Statement implies that merely holding confidential meetings or using encrypted communications falls within the definition of "covert" (and its excuse is that its not a problem because usually "the purpose of the activity is not to harm designated interests"). Do anything without inviting the police or SIS or narks to spy on you and read all your stuff? Covert! "Deceptive" means hiding or obfuscating consequences, or lying, or even "omitting any material particular"; what's a lie or an omission is of course entirely in the eyes of the state here, but the scope there seems very broad. Writing anonymously or under a pseudonym is absolutely covered. And "coercive" includes not just intimidation and threats, but also "enabling the denial or restriction of access to property or services that another person would otherwise be entitled to access". Did a fragile white incel feel "threatened" by your protest? Was someone late to work? Congratulations, it's coercive!
The latter point of course covers a huge swathe of legitimate democratic protest. Occupations and blockades are a normal part of the push and shove of democratic society. This law would define them as "coercive".
But wouldn't they only be illegal if they compromised protected New Zealand interests on behalf of a foreign power? As noted above, those interests include "international relations" and "economic wellbeing", while links to a foreign power can be highly tenuous. We've seen protests blockade streets and buildings, occupy land, ships and oil rigs, and the targets of those protests - the dairy, oil, and weapons industries - have all claimed that it threatens "economc wellbeing" (they've even called it "economic treason"). And the government and SIS of the day have slandered virtually every major protest movement in our history - the union movement, the anti-war movement, the anti-apartheid movement, the anti-nuclear movement - as a tool of foreign interests.
Essentially, this law allows the government to criminalise people based on its own misconceptions, conspiracy theories, and outright fantasies of their motivations (and its belief that we "ought to know" about their weirdo fantasies). It would have allowed Muldoon to jail John Minto and all of HART for 14 years for being foreign agents. It would have allowed them to jail every anti-nuclear protestor who blocked a street or rowed a canoe in front of a ship, and everyone who wrote a letter to the editor under a false name advocating against nuclear ship visits. It potentially - depending on what weird fantasies the SIS and Federated Farmers have - allows them to jail every member of the climate, environmental, and indigenous rights movements.
This is massive over-reach. And it being done in the name of "protecting" our rights adds insult to injury. As noted above, foreign interference is a threat. But the real threat here seems to be our own government, and its contempt for basic democratic rights.
Can this bill be saved? Removing s78AAA entirely would fix it. Alternatively, it could have an "avoidance of doubt" clause protecting protest, advocacy, dissent, and strikes, as used in the Terrorism Suppression Act might work. But I suspect that the government would view that as undercutting the core purpose of the bill: an all-encompassing criminalisation clause, with no loopholes for foreign agents to wriggle through. The problem is that that purpose criminalises us. And while the government will no doubt say "trust us, we wouldn't prosecute you", their record on this shows that they simply cannot be trusted. This law needs to be gutted. And any MP who votes for it in its present state needs to be voted out on their arse.
