78AAAImproper conduct for or on behalf of foreign power to compromise protected New Zealand interest

1. A person commits an offence if—

2. the person engages in improper conduct for or on behalf of a foreign power; and
3. the person knows, or ought to know, that they are engaging in the conduct for or on behalf of a foreign power; and
4. the person engages in the conduct intending to compromise a protected New Zealand interest.

5. A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 14 years.

6. A person commits an offence if—

7. the person engages in improper conduct for or on behalf of a foreign power; and
8. the person knows, or ought to know, that they are engaging in the conduct for or on behalf of a foreign power; and
9. the person engages in the conduct being reckless as to whether doing so is likely to compromise a protected New Zealand interest.

10. A person who commits an offence against subsection (3) is liable on conviction to imprisonment for a term not exceeding 10 years.

11. To avoid doubt,—

12. the fact that a person protects information for a lawful purpose in the ordinary course of business, a profession, or an occupation, whether paid or unpaid, is not, by itself, a sufficient basis for inferring that the person is engaging in improper conduct:
13. the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person is—
    1. intending to compromise a protected New Zealand interest; or
    2. reckless as to whether the person’s conduct is likely to compromise a protected New Zealand interest.

14. Examples of conduct contemplated by subsection (5)(a) include the protection of trade secrets, commercially sensitive information, personal information, journalists’ sources, or legally privileged communications, including by way of encryption.

15. In this section, conduct that a person engages in for or on behalf of a foreign power—

16. includes conduct that is—
    1. instigated, directed, or supervised by a foreign power; or
    2. undertaken in collaboration with, or with the assistance, funding, or agreement of, a foreign power; but
17. excludes conduct that constitutes the lawful performance of the person’s functions or duties as an employee, contractor, authorised representative, or agent of the Government of New Zealand.

18. In this section,—

    foreign power means any of the following:

    1. a foreign government (as defined in section 105C):
    2. a foreign public agency (as defined in section 105C):
    3. a foreign public enterprise (as defined in section 105C):
    4. a foreign public official (as defined in section 105C, but as if the references to a public international organisation were removed):
    5. a political party within a foreign country (as defined in section 105C) that constitutes, forms part of, or represents a foreign government (as defined in section 105C):
    6. a person in their capacity as a holder of a political or official post if—
       1. the person holds that post as a result of, or in the course of, their membership of a political party referred to in paragraph (e); or
       2. the person is subject to the direction or control of, or is significantly influenced by, a political party referred to in paragraph (e) in exercising the functions of that post:
    7. a company, body, organisation, or association whose main purpose is to support a political party referred to in paragraph (e)

    improper conduct means conduct that includes any of the following:

    1. conduct that is of a covert nature, which may include—
       1. concealing a person’s actions or identity:
       2. obscuring the existence of an association or relationship:
       3. collecting or sharing information about a person without their knowledge or consent:
    2. conduct that is of a deceptive nature, which may include—
       1. misrepresenting or obfuscating a person’s purpose in acting or not acting:
       2. failing to disclose the consequences of acting or not acting in accordance with any representation:
       3. making a false representation:
       4. omitting any material particular in dealing with another person:
    3. conduct that is of a coercive nature, which may include—
       1. using intimidating, threatening, manipulative, or exploitative behaviour against another person:
       2. enabling the denial or restriction of access to property or services that another person would otherwise be entitled to access:
    4. conduct that is of a corruptive nature, which may include abusing a person’s position or authority in a manner that enables the person to—
       1. exert undue influence or control over another person:
       2. make a monetary or personal gain

    protected New Zealand interest means any of the following:

    1. the security or defence of New Zealand:
    2. the economic well-being of New Zealand:
    3. the international relations of New Zealand:
    4. the functioning of the executive, judiciary, or legislature of New Zealand:
    5. the exercise or performance of any public function, duty, or power conferred or imposed on a person or body by or pursuant to the law of New Zealand:
    6. the fair and impartial conduct of any election, poll, or referendum under the law of New Zealand:
    7. the ability of any person to exercise in New Zealand any human, civil, political, or democratic right recognised under the law of New Zealand:
    8. the safety or security of—
       1. any person in New Zealand; or
       2. any citizen of New Zealand, whether or not that person is in New Zealand; or
       3. any person ordinarily resident in New Zealand, whether or not that person is in New Zealand.