Visiting Forces Bill

on behalf of the Minister of Defence: I move, That the Visiting Forces Bill be now read a first time. It is my intention to move at the conclusion of this debate that the bill be referred to the Foreign Affairs, Defence and Trade Committee.

The Visiting Forces Bill will repeal and replace the Visiting Forces Act of 1939. The proposed bill is intended to rectify certain deficiencies, identified by the Crown Law Office, in the Visiting Forces Act. The bill will also update the law relating to visiting armed forces, and bring it into line with developments in New Zealand law as well as the law of New Zealand’s friends and allies.

This is important for reasons of international reciprocity. New Zealand expects that its armed forces will enjoy similar privileges and immunities from local jurisdictions, when they are deployed to foreign countries, as their visiting counterparts receive here. The relationships in respect of jurisdiction are contained in the status of forces agreements that are routinely negotiated with States with which New Zealand has defence relations, and to which the New Zealand Defence Force deploys. This is made difficult when, under current legislation, New Zealand is unable to guarantee similar privileges and immunities to forces visiting New Zealand.

The principle generally recognised under international law is that a State that voluntarily admits a foreign armed force to its territory by implication undertakes not to exercise any jurisdiction over the force or its members that would be inconsistent with its continuing to exist as an efficient force of the sending State. Prior to the 1951 NATO Status of Forces Agreement there was, however, considerable debate as to the extent to which a visiting force must be considered subject to the laws of the receiving State. The solution arrived at in the NATO Status of Forces Agreement provided that, for most purposes, there is shared jurisdiction between sending and receiving States. The NATO agreement allocated primary jurisdiction to the sending State for offences committed in the performance of official duties, or against other members of the force or accompanying civilians. Off-duty offences committed against the local population were left to the primary jurisdiction of the receiving State.

The Crown Law Office has identified that the 1939 Act does not (a) contain any provision to resolve issues of shared jurisdiction; (b) provide for members of visiting forces who commit offences in New Zealand to be arrested and brought before a court in the usual way, pending resolution of the question of jurisdiction; (c) provide an effective safeguard against double jeopardy; or (d) deal with coronial inquests into the death of a member of a visiting force.

The Visiting Forces Bill will make the following improvements: (a) potential application to any foreign State—not just Commonwealth members—whose armed forces are in New Zealand with the consent of the New Zealand Government; (b) clarification that the jurisdiction of visiting forces may include criminal jurisdiction, which will enable New Zealand to give effect to the status of forces agreement signed with Australia in 1998; (c) provision of a mechanism to resolve issues of shared jurisdiction between New Zealand and the sending State; (d) provision for members of visiting forces who commit offences in New Zealand to be arrested and brought before a court in the usual way, pending resolution of the question of jurisdiction; (e) effective safeguard against double jeopardy; and (f) provision concerning coronial inquests into deaths arising from the presence in New Zealand of a visiting force.

The Visiting Forces Bill will permit a visiting force in New Zealand to exercise exclusive disciplinary jurisdiction over its personnel, as is currently the case under section 3(1) of the 1939 Act. It will also provide for shared jurisdiction between New Zealand and the sending State to investigate and prosecute offences committed by a member of the visiting force in New Zealand. In such cases, the ability of the visiting force to exercise criminal jurisdiction will be subject to the terms of the status of forces agreement entered into between New Zealand and the sending State before the visiting force arrives in New Zealand.

National will support this bill. We think it is timely that this sort of legislation has come in that brings us into the international arena. If we were to look at the background, to why this bill has come about, we would see that the Visiting Forces Act of 1939 applied only to forces of designated Commonwealth countries, and dealt with a number of limited matters. The Act conferred only disciplinary jurisdiction, and did not cover things like resolving issues of shared jurisdiction; providing for members of visiting forces who commit offences in New Zealand to be arrested and brought before a court in the usual way, pending resolution of the question of jurisdiction—which country was to have jurisdiction—and providing effective safeguards against double jeopardy. So there were a number of issues that the 1939 Act did not apply to, and that has led to inconsistencies with the way that other jurisdictions and legislation around the world now operate.

If we look at international practice, we can see that this bill brings us into line with that practice. The United Kingdom passed a Visiting Forces Act in 1952 to implement arrangements under the NATO status of forces arrangement, and, as the Minister of Police mentioned, on 29 October 1998 the New Zealand Government signed an agreement with Australia with the intention of amending the law to bring it into line with international law and practice. However, the agreement was not ratified, and a number of issues came from that; that now leads us to this bill that we are debating this afternoon, and that National supports.

Probably the major provisions in this bill are those relating to the command, control, and administration of the visiting force, but I want to spend a brief time on the crux of what this bill is about—that is, the provision that criminal and disciplinary jurisdiction is subject to agreement. Clause 8l provides that “(1) To the extent permitted by the applicable agreement, the service authorities of a visiting force may, within New Zealand, exercise over members of the visiting force, members of its civilian component, and its dependants all criminal and disciplinary jurisdiction conferred on them by the law of the sending State.” These rights include the power to arrest, the power to detain, and the power to search any person falling under those categories. The bill also allows for powers to enter and search any ship, aircraft, vehicle, or premises belonging to, or occupied by, the visiting force, or such person as mentioned earlier in the bill. It also allows the service authorities to seize or take possession of any property, article, or thing found in the possession of such a person, or on a ship, aircraft, vehicle, or premises.

So what the legislation does is quite wide ranging. As I said earlier, it brings us into line with international practice. There are some exceptions, and I will just mention what they are, because they are significant and we do not want people to think that this is blanket coverage of all the provisions that we might expect. The sentencing authorities of a visiting force must not impose or carry out a sentence of death in New Zealand. As we do not have the death penalty, that of course falls in line with what we would expect.

💬 Hon Ken Shirley: We could really!

We probably could change it. There must be no act done in New Zealand that would, if committed by a member of the armed forces of New Zealand, constitute an offence against the Crimes of Torture Act. I was unfamiliar with the Crimes of Torture Act of 1989, but that is certainly an exemption.

There are a couple of provisions that require the Attorney-General to have input into how these matters proceed. Two of those provisions are that the service authorities of a visiting force must not exercise a power to enter and search any ship, aircraft, vehicle, or premises belonging to, or occupied by, a visiting force or person—as I mentioned earlier—if the ship, aircraft, etc. is also occupied by a person who is here other than as a member of a visiting force, a member of its civilian component, or a dependant, and the service authorities of a visiting force must not exercise a power to seize or take possession of any property, article, or thing found in the possession of any such person. Service authorities may request the Attorney-General to obtain the issue of a search warrant under section 59, if those matters are to be proceeded with.

The Attorney-General will also have input into the criminal proceedings, which is a major provision of this bill. Criminal proceedings may be instituted against a member of a visiting force, a member of its civilian component, or a dependant who is subject to the service law of the sending State. But these proceedings are stayed and must not proceed without the consent of the Attorney-General.

There are a number of other provisions that I will not go through. It is significant that we have this legislation. National will support this bill going to the select committee.

I rise to support this bill. In the 64 years since the Visiting Forces Act was first passed, many gaps have emerged that international instruments do not really resolve. I am glad that this bill is bringing us into line with international law. I am very pleased to support this bill today.

This matter should be relatively simple. If I am correct, I do not think anyone will be opposing this bill. Certainly, New Zealand First will not be. However, I would be interested to hear the view of Ken Shirley and the ACT party. It is interesting, because I could sit here and go through the bill page by page—as the honourable member Lindsay Tisch has done—and highlight parts of it, but I think that he and the Minister between them have covered the need for the bill and its aims quite well.

I guess we all need to consider for a moment that there used to be a time when New Zealand had lots of visiting troops. In my time in the New Zealand military, I remember that not only were we exercising in Fiji under the Tropic Dawn exercises, but we used to have some friends called Americans who would come to New Zealand every year to take part in the Tropic Lightning joint exercises in Waiouru. For a lot of reasons, we do not have those people visiting any more. Some would say that given the length of time—and Steve Chadwick said it was 64 years or so since the Visiting Forces Act was passed—a lot of things have changed.

There is probably less need for this sort of legislation now than there was then, and that is probably one of the great ironies. In those days, we used to have the Brits here in huge numbers, the Americans in good numbers, and the Australians. I guess that was because we were all part of an Anzac and an ANZUK arrangement. We had lots of friends and people who wanted to exercise and train with us, and take the opportunity to enjoy the sights, scenery, and pleasures that New Zealand had to offer them whilst they were taking their “liberty”—as some Americans called it—or R and R, as others did. That was a most enjoyable time in the New Zealand military, because we got to operate alongside those people and give ourselves the opportunity to test our mettle.

The Gurkhas visited in those days, as well. The Queen’s Gurkhas were out from the UK, and I think we have had a recent visit from those chaps. In most recent times, a larger number of French servicemen have visited New Zealand than have Americans. I hear that for the last exercise they participated in, we were not allowed to acknowledge that they were here, because no one wanted to talk about them being here. I really do not understand that, because this is a time when New Zealand needs friends and needs to acknowledge that they are present.

All sorts of things happen in the military that can result in legislation like this being needed.

💬 Jill Pettis: Be careful!

Yes, I will be very careful. I am thinking of little things like the New Zealand service personnel who were always poorly equipped and envious of what other people had, and how they used to obtain stores and equipment from their visiting friends and allies. In so doing, we were able to re-equip the army to a better stage than it had been by our Government. Some of the favourite stores that were obtained—and some might interpret this as being a breach of civil law—were American overboots, American combat jackets, and all sorts of things.

This bill does not relate to those activities, because the Americans did not commit any criminal acts in New Zealand. If anyone were to be accused of committing criminal acts, it was the New Zealanders who were committing them on our visiting friends, because they had better gear and lots of it. They could replace it really quickly, because their Governments gave them bigger budgets. In my 20 years’ service—15 years in the New Zealand military service, and 5 years with the Brits—I do not recall any real serious crimes being committed by visiting troops. In fact, they were often more in danger from anti-Vietnam protesters and the like, than they were—

💬 Hon Ken Shirley: What about Oman?

No, I do not remember any crimes being committed in Oman, other than the work of terrorist organisations and insurgent forces. We did not classify those things as crimes; they were operations, and were dealt with accordingly.

When the Foreign Affairs, Defence and Trade Committee was looking at the insertion of New Zealand forces into Afghanistan, Iraq, and other places around the world, Mr Locke questioned most vigorously on status-of-forces agreements that have been signed. He wanted to know what the status of those forces was in terms of their operational liability. We talked about that, but now I guess that this legislation will bring some things into line so that we are all singing off the same song sheet. The fact that we are now formalising standard NATO policies that have been accepted is a good thing.

However, we just need to go a little further and extend our level of cooperation with our friends and allies in a far more meaningful way operationally. I have witnessed defence personnel from the United Kingdom operating in other parts of the world at the invitation of the Governments of those nations, and having to undertake difficult tasks that were never talked about publicly. I guess one always worries about the status of one’s troops, and how they might be treated should they fall foul of the law in participating in some of those operations. I guess that when we get to the select committee and start to talk about it—or maybe not talk about it, because we cannot talk about the SAS operations or some of those areas if we can go to closed sessions and maybe even have them in private. We just need to be sure that those reciprocal agreements provide our personnel with absolute guarantees.

What I would not like to see—and legislation has gone through this House before that I believe jeopardises some of our troops—is a situation where our people go about performing their duty as instructed, either as part of a coalition or a multinational force, and then find themselves facing some international kangaroo court for supposed war crimes, because someone else’s interpretation of that operation is that it was a crime. I note that the Americans have signalled their concern about such treaties and agreements at the United Nations level.

On the face of it, this bill seems harmless, so on that basis New Zealand First will support it going to a select committee. If there are areas of concern—and I will be listening to the speakers who come after me, who might have seen something I have not—then New Zealand First will definitely look at those issues.

It gives me great comfort and satisfaction to be able to reflect that on very few occasions have visiting forces to this country run foul of the law, and on very few occasions did we run foul of the law in the time we were deployed in Singapore. If this bill tidies up the legalities of how to deal with those contingencies—should they occur—then that is fine; let us have that. My only suggestion in this area of cooperation and determination to work more closely with our allies and traditional friends is that maybe we as a nation should be looking to extend those things and take the same view operationally. Let us start working a little more closely with the United States and Australia in the South Pacific, in the manner that Australia is working.

In closing, I just say that there are many advantages in doing such a thing. I note that one of them was reported in the paper recently. Whereas New Zealand is having to spend $750 million on some armoured vehicles, Australia—because of its good relationship with the United States—is in the process of being offered 100 M1 Abrams main battle tanks for the price of 50. That is the sort of deal one gets when one has friends in the United States.

I rise on behalf of the Greens to support the Visiting Forces Bill going to the select committee. It is important to have rules governing any foreign military personnel who come to New Zealand. They come here under all sorts of categories, ranging from people here for short-term training missions, to people staying on a longer-term basis—as with the American personnel who have been coming to Harewood on and off for many years. As the previous speaker indicated, there are different levels of agreement relating to visiting forces. This bill is a sort of base document, setting out the framework under which visiting forces operate. On top of this will be individual status of forces agreements appropriate to the particular foreign contingent coming in, whether it be a short-term training force or a longer-term force working in New Zealand—as, again, applies to the people who come to Harewood in one capacity or another.

In addition—as the previous speaker indicated—there are often other agreements, such as those that occur in relation to Afghanistan, where the situation is reversed, with New Zealand units operating within a larger force, like an American-led force in the case of Operation Enduring Freedom, where rules of engagement and command structures are built in on top of the status of forces agreement. It can be quite complicated, and it is good to have a base document. I do not think we will have in New Zealand that level of complexity that perhaps operates in Afghanistan, because I do not envisage hostile military operations taking place in New Zealand in the near future. They are not on the horizon in any way whatsoever.

The essence of this bill and the status of forces agreements that lie on top of it are that the visiting force has jurisdiction over things that happen within it—that is, if one of the visiting soldiers in its base attacks another soldier from the same country, the discipline that ensues is, in general, that of the visiting force command structure. The case does not go into a New Zealand military court or domestic court, although, as one speaker has said, there is a qualification in the bill whereby the Attorney-General has certain rights to intervene and generally to stay any prosecution.

Of course, there are grey areas. For example, a fight between two personnel from a visiting force may occur. In some way a New Zealander, or the property of a New Zealander, may be involved, getting us into that shared jurisdiction situation, where the involvement of the Attorney-General—the New Zealand Government—is relevant.

There is one provision of which we will tease out the meaning at the select committee. On the surface, the provision is a very good one—that is, the service authorities of a visiting force must not impose, or carry out, a sentence of death in New Zealand. Of course, given that we have abolished the death penalty, we would be in favour of that, but it does leave open the question of a crime being committed that is deemed to be a very serious by the visiting force, and instead of the prosecution taking place in New Zealand—or any sentence carried out in New Zealand—the visiting personnel might be whipped back to the country of origin, be it Brunei, the United States, or whatever.

If it were the United States, which does have the death penalty, one could conceivably see the situation of somebody who commits an offence in New Zealand being whipped back to that country and suffering the death penalty at the end of some sorts of military proceedings that take place there. That is a theoretical possibility, and I would like to tease that out when the bill gets to the select committee.

It is relevant, because around the world now, the application of the death penalty is quite controversial when it involves people from other countries—for example, if a foreigner is a citizen of another country. There have been protests in Europe about Italian citizens, and so on, being sentenced to death in the United States. There has been a controversy over the people illegally detained at Guantanamo Bay. Some are British and some are Australian citizens, and there is a question of whether the proceedings against them ever take place—they are in a legal limbo at the present time—in an American military court, which will mean they will possibly be subject to the death penalty. So it is a live question, when one is talking about the question of visiting forces.

I think the problems that ensue historically with visiting forces ensue more where there is a longer-term occupation force. There have been big controversies, for instance in South Korea, Okinawa, and the Philippines, and one would expect that when visiting forces, like the American forces in this case, have been in such countries for long periods of time—and many thousands of them—the assault cases, rape cases, and murders ensuing in respect of the local populace can cause great tension between the countries involved.

The proper application of justice is important, and citizens of the country—in this case, New Zealand—get very upset if they do not think that justice has been properly applied to visiting forces who have offended, and if the way they have offended has affected the citizens or property of citizens in the host country. It is important to have the bill right in this respect, to make sure it is applied properly, and to make sure that on top of the bill we have appropriate status of forces agreements that ensure justice is done.

Throughout the 1980s, in terms of visiting forces in the form of United States personnel on Operation Deep Freeze, there were ongoing problems and tensions between agencies of the New Zealand State and the US commanding forces. For example, there were cases of drugs being intercepted that had been brought in on American military planes, and there was a to and fro between the Customs Service, which wanted to get at the people responsible, and the American forces.

If we use a parallel with Harewood, we cannot raid an American plane very easily under the Visiting Forces Bill, or under any status of forces agreements that are on top of it. We have to have an arrangement whereby domestic authorities in New Zealand—the Customs Service, and others—are satisfied that if, for instance, drugs were brought in on a military plane, then some penalty has ensued, and that the drugs did not somehow move to the population of Christchurch, as occurred in a contentious case in the 1980s.

This is potentially a relevant problem, because the United States sends its Starlifters through Harewood on a regular basis, en route to the joint Australian-US base at Pine Gap station. Even the Ministry of Agriculture and Forestry had a bit of a debate with US authorities at Harewood about the right to spray the planes coming in, as a biosecurity measure. All these questions are left a little bit up in the air, and need to be dealt with.

There is the other question—and Ron Mark referred to it—about the International Criminal Court, which the American Government does not accept. Potentially, under New Zealand’s adherence to the International Criminal Court, if we find that American military personnel who are based here short term or long term have offended—even overseas—in a way that would qualify them to come before the International Criminal Court, then we should have an arrangement where that is made possible.

The Americans are trying to sign up agreements with countries around the world, and have, unfortunately, signed agreements with several countries in the Pacific—unfortunately, without very much New Zealand diplomatic action to stop this—to exempt American people in those countries from being shipped off to the International Criminal Court.

I think it is important that we have agreements, and this bill, set out, so that we can fulfil our international obligations. We must assure New Zealand people that justice is done to people who commit crimes—be they members of American forces—particularly if New Zealanders are involved in any way, either directly, in terms of their property or of physical effects, or in terms of what often happens with visiting forces, which is the fathering of offspring in New Zealand, when civil cases sometimes ensue. All sorts of problems can arise that are handled through the civil jurisdiction rather than the provisions of this bill.

ACT will be supporting the Visiting Forces Bill. It is a harmonisation of criminal and disciplinary provisions, and it seems to be time to legislate for this, although it is rather curious that for some 64 years—when our friends used to visit us regularly, and we had lots of visiting troops from other nations—we managed to get by without this legislation. Now, at this time in our history when we have no friends, and when no troops from other nations want to visit us, this Government deems it necessary to pass legislation to harmonise aspects associated with visiting troops. That is certainly an extraordinary situation.

I want to comment on the situation with regard to visits by United States forces. The United States was our traditional ally, going right back to the Second World War and earlier. Large numbers of US troops used to come here. During the Second World War we had numerous bases, such as at Paekakariki, where the Guadalcanal campaign was launched. The hospital at Silverstream was built for American troops involved in the Guadalcanal battle. The visiting American troops from that time were a part of our culture. We know now that because of the actions of this Government, the troops are no longer welcome.

When it comes to visits by nuclear-propelled ships of the United States Navy—and other navies, for that matter—they are banned by statutes on our book. Clause 11 of the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act, which was passed in 1987 in the run-up to an election, bans visits by nuclear-propelled ships to this country. I abhor nuclear weapons. The issue of nuclear weapons is totally distinct from that. The South Pacific Nuclear Free Zone Treaty, signed in 1985, bans the deployment of nuclear weapons in the South Pacific. But for some strange reason, the Labour Government thought it necessary to have this clip-on ban on visits by nuclear-propelled ships.

An anti-American sentiment drove that. There was an extensive review of the situation by the retired Judge Somers in 1992—a 179-page report by a retired High Court judge, along with three eminent scientists in physics and medicine. Their conclusion, after hearing all public submissions, was that there was no environmental risk or public safety reason for precluding the visit of American ships to New Zealand. In other words, it is a straight, anti-American sentiment that this Government clings on to.

The Somers report went further with regard to these visits of nuclear-propelled ships and their troops. It concluded that two times more radiation is emitted into the environment from patients being treated by iodine for goitre in Auckland Hospital alone, than there is from the entire fleet of US nuclear-propelled ships and all their support services in a year. That was the conclusion of a High Court judge and top scientists after a year of study. So, that is the nonsense of our ban on the visits of nuclear ships.

Of course, we lose massively in the economy, because visiting troops are part of the tourist industry. If it is a large aircraft carrier, for example, there would be 2,500 troops, with 5 months’ accumulated pay and a lot of disposable income. It is a very lucrative part of the industry. I am told that New Zealand ports were always preferred ports of call. The troops enjoyed themselves here more than at many other ports around the world, and they always looked forward to coming to New Zealand. We have lost that expenditure, and it was not just those pays that were being spent here, but it was all the provisions of the ships, and the repairs and maintenance. We no longer see that. Ten nuclear-propelled ships visited New Zealand between 1960 and 1984, when we essentially banned them. There were five submarines and five surface ships, with 13 visits in total, but involving only 10 ships—obviously, some came twice.

So we are losing massively by this silly provision on our statute book. I raise the issue here, because it is the Visiting Forces Bill and it is an appropriate time to address it. While this bill does address those criminal and disciplinary provisions, we must reflect on the nonsense of the perpetuation of our ban on nuclear propulsion. Apart from there being no environmental reason for it and no public safety risk, it is to our disadvantage from a strategic point of view. It is the single greatest obstacle blocking New Zealand from enjoying equal status with Australia in the negotiation of a free-trade agreement with the United States, and that could cost this country dearly.

So, because of cold war rhetoric, this Government is not prepared to put us on an equal footing with Australia so that we can gain access to that market on an equal basis. While I say to the House, in that respect, what we will see is CER withering on the vine, because, as Australia looks to the bigger market in the United States with a free-trade agreement, to the extent that New Zealand is an obstacle to that, New Zealand companies will relocate to Australia. I know the Carter Holt Harvey head office is already thinking of doing that. Closer Economic Relations will become an irritant and, as New Zealand is a smaller market, there is no doubt where the Australian economy will be looking.

We will lose massively from an economic point of view, and this foolish Government persists in retaining and perpetuating this meaningless ban. It is meaningless from an environmental point of view and from a public safety point of view—it is meaningless from all perspectives—but it continues this ban on the visits of nuclear-propelled ships, which effectively blocks the navies of many nations from visiting our ports, for strategic visits and for rest and recreation. It costs us directly in the economy, but indirectly it costs us our future.

I rise to speak briefly to this bill. It is a companion to other recent legislation, which deals with New Zealand forces who are going overseas, which in this case is the flipside of visiting forces coming into this country. It will enable the status of forces agreements that have been negotiated with other jurisdictions to come into effect and be given effect within this country, and it is a largely non-controversial measure.

I pick up on one point that the Hon Ken Shirley mentioned in relation to the number of foreign military personnel coming to New Zealand. He is quite right in saying that that no longer happens with regard to the United States, but there are still about 3,500 members of foreign military establishments who come to New Zealand every year from a whole variety of countries. Obviously we need, therefore, to have in place proper legal arrangements covering the visits of those personnel. United Future is happy to see this bill go to the select committee for its consideration.

Bill read a first time, and referred to the Foreign Affairs, Defence and Trade Committee.