Diplomatic Privileges and Immunities Amendment Bill

Obviously, clause 1 is the title clause. I think it is quite clear, when we read the title, that it does not tell us anything about the bill. It just tells us that the bill amends the Diplomatic Privileges and Immunities Act, but for what purpose? To achieve what? The Government should make titles more clear as to what the bills do. If that were the case, it would assist the public in utilising our statutes.

In essence, as I understand it and as the Opposition understands it—and I hope the Government will correct us if we are wrong—this amendment bill, once Supplementary Order Paper 190 is adopted, will essentially do two major things. First, it will extend diplomatic privileges and immunities to the International Criminal Court. That is a quite important matter for New Zealand, and there is no reason to hide that fact. There is no reason why it could not be mentioned in the title. As part and parcel of that process, the bill also extends such privileges to persons attending meetings of the Assembly of States Parties to the Rome Statute or its subsidiary parts—all part of the International Criminal Court.

The second major issue in this bill, once Supplementary Order Paper 190 is adopted, is that it also extends diplomatic privileges and immunities to members, and their families and staff, of the European Commission. Again, there is absolutely no reason why the title of this bill could not include that, so that people could see at a glance what this bill is doing. It is not amending some of the procedures for establishing which countries, what organisations, might receive diplomatic privileges and immunities in New Zealand; it is simply adding to the group of States and organisations that do enjoy diplomatic privileges and immunities. New Zealand is adding to those the International Criminal Court and the European Commission. It is a shame that the Government does not have the title cover that.

In future, when the Government is establishing a title of a bill, I strongly urge it to look at what the bill does, and, if it is at all possible, incorporate some element of that into the title, so that when people use the statutes they can see what on earth a statute is about. This legislation is not highly controversial, but, sadly, the title as printed in this legislation gives us no guidance as to what it actually does. The Government ought to amend the title. There would not be any great difficulty in amending the title so that it could be seen what the bill actually does. As I have said, without such an amendment the public has no guidance whatsoever. The bill could be amending the process, or any aspect of that important principal legislation, the Diplomatic Privileges and Immunities Act. That is simply not good enough. The title needs to be much more clear. I suggest that the Government should consider spelling out in the title, with a simple bracketed addition—“ICC and EC Inclusion” or some such wording—what the bill does, to make it clear to people using our statutes what is covered by this legislation.

I do not think there is anything of great importance in respect of the title clause, apart from the fact that the title is so vague as to leave people absolutely in the dark as to what this legislation actually does. Some might say that does not matter too much, but it does matter. It is important that people understand whether this legislation just adds new members who will receive such privileges, or changes the process significantly, because those two issues are very different. If it were changing the process for establishing diplomatic privilege and immunities, then there would be far greater need for detailed attention to exactly how it was being changed. But the title gives no guidance whatsoever, so people are left in the dark as to what the legislation does.

The National Party is prepared to support the bill, despite that deficiency in its title.

I rise on behalf of the Green Party to support this bill, as we did in the second reading. However, in terms of the title debate, I disagree with the previous speaker, Lockwood Smith, who said that the title does not indicate specifically enough what the bill is about. The bill is fairly broad. It does extend immunity to witnesses, experts, counsel, and others involved in International Criminal Court proceedings. That immunity also applies to European Union representatives coming here or to international conferences of one sort or another that may be held here. The bill also refers to the OECD, the World Trade Organization, and the United Nations. As I understand it, under this bill any conference can be designated as being appropriate for the level of privilege and immunity provided by this legislation.

There is a certain lack of clarity in terms of the breadth of the title and what it contains. That is why I have moved an amendment to be discussed under the next clause—just to telegraph that—to make it clear that non-State actors who are participating in a specified international conference can be covered by this legislation. For example, when New Zealand participates in an international conference, often its delegation is made up of State representatives officially representing the Government and non-governmental—

💬 Dr Wayne Mapp: Is the member seriously suggesting that he is to give diplomatic immunity to Greenpeace?

It may be—I would have to look back at the history of New Zealand’s participation in environmental conferences—that amongst the non-governmental representatives as part of the official delegation at an environmental conference, and the Minister may comment on this, that there was a representative of Greenpeace. At conferences on Antarctica, representatives and specialists from non-governmental organisations have been involved in those issues. All that we are talking about here is that we want to make sure that all members of a delegation, and perhaps even non-governmental organisation members who are not part of an official delegation that is coming to New Zealand, may be covered.

Under the bill and under the amendment I will be producing, the Minister has the power to determine the non-State actors who could be covered by this legislation and given the privileges and immunities it confers. We are moving into an environment where State actors, non-State actors, and non-governmental organisations do work together on issues, and we want to set a good model, too. One thing that worried me recently, just this year, was reports from Indonesia concerning the official negotiators at an international conference on Aceh—they have had conferences like the one they had in Tokyo, and they were having an official international conference to settle the Aceh dispute with negotiators from Gerakan Aceh Merdeka, the Free Aceh Movement, and the Indonesian Government. Those negotiations broke down at the dictate of the Indonesian Government. It said the conference was all off, and it required that the Gerakan Aceh Merdeka representatives accept officially—

I just bring the member back to the title, please.

💬 KEITH LOCKE: I am just saying that the title needs to have the breadth—and here I disagree with Lockwood Smith—to cover the various possibilities that will be required if New Zealand is to involve itself properly in international conferences, and if we are to give sufficient protection to people who are perhaps non-State actors or representatives of non-governmental organisations, and not just the State actors.

Like Lockwood Smith, I think the Diplomatic Privileges and Immunities Amendment Bill is misnamed. I was a little sorry that the Hon Lockwood Smith did not return to the matter he raised when he first spoke on this bill in the first reading debate. He pointed out that new sections 10E and 10D, inserted by clause 3, raised serious issues that the select committee should examine. Sadly, the Foreign Affairs, Defence and Trade Committee did not examine them. It did a pathetic job, and did not look at any of the serious issues. This bill comes back to us with the title unamended, despite the fact that the immunities, privileges, and exemptions the bill confers will go way past diplomats. The international agreement, the Vienna Convention on Diplomatic Relations, which the bill makes extension to or extends the benefit of, begins with some very fine old drafting. It states: “The States Parties to the present Convention, Recalling that peoples of all nations from ancient times have recognised the status of diplomatic agents”, and “Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relationships amongst nations, irrespective of their differing constitutional and social systems …”, and then it goes on.

The problem here is that this bill extends diplomatic privilege or immunity to people who may well be war criminals or thugs. They may be propagandists for war criminals or thugs. The bill states that when an International Criminal Court hearing is being held here the immunities extend not just to the judges—which we would think was common sense—but go past the prosecution, the deputy prosecutor, the registry staff, the staff of those officers of the court, or those necessary appendages of the court, and they go to counsel, witnesses, victims, experts, and any other person required to be present at the seat of the International Criminal Court. Members should just think for a moment about whether the title of this bill would alert anyone to the prospect that the former President of Serbia, Mr Milosevic, could call as a witness anyone he wanted to call, and could bring in a bunch of his thugs—his gangsters—who would obtain all the immunities provided under noble sentiment for the diplomatic agents of nations.

In other words, this bill does what Labour so often does: it takes legislation with ordinary words that have a well-settled meaning, and adds in provisions that mean in the end they could come to have totally different consequences. I believe that is something the Committee stage of the House should look at, because the Foreign Affairs, Defence and Trade Committee did such a hopeless job in the 35 or 40 minutes that it spent examining this bill. It did not consider just what the ramifications are when the immunities are extended to counsel, witnesses, victims, experts, and any other person required to be present at the seat of the International Criminal Court. Why should those people be immune from New Zealand law? Why should they not have to pay tax? If they are gangsters and crooks and they spend 6, 7, or 10 months here while there is a court hearing on, we can be sure they will live according to their normal custom. Why should those immunities be offered to those people, at all? Is there any suggestion that they need the State to assist them in finding accommodation? In my opinion, there is a whole host of articles in the Vienna Convention on Diplomatic Relations that should clearly have been made exceptions, so that those people could not benefit from this immunity.

The title of this bill should have been adjusted to reflect the fact that this is not a diplomatic privileges and immunities amendment bill, but is a “Parties to Court Proceedings (Privileges and Immunities) Amendment Bill”. That is quite different from the old immunities and privileges that have become part of international custom, and that have sometimes been tested almost to the point of destruction when members of some diplomatic missions have abused them. We all know about the members of such missions who routinely do not pay their parking fines, or who scoot and run when they have caused traffic accidents, and so forth.

I want to make two points with regard to the title clause of the Diplomatic Privileges and Immunities Amendment Bill. Firstly, I want to respond to some of the comments that have just been made, and to draw the Committee’s attention to relevant sections of the explanatory note. This bill implements New Zealand’s commitments under the Rome Statute of the International Criminal Court. It is part of that agreement, which we signed in October 2002 but have not yet implemented by ratification. The agreement sets out in detail—and I quote from the explanatory note—“the privileges and immunities that the International Criminal Court (the ICC), its Judges, and others associated with the court enjoy while in the territory of a State Party on ICC business.” In other words, the inclusion of the range of provisions that the member who preceded me referred to is not a matter of New Zealand arbitrarily acting to include certain people; it is a matter of New Zealand recognising the commitment it entered into when it signed the agreement in October 2002 to be party to the establishment of an international criminal court. That is the beginning and the end of that issue. So any talk of a need to amend the title of the bill in that instance is, in my view, spurious.

The second point I want to make, though, does relate to the title of the bill, particularly given Supplementary Order Paper 190, which now brings diplomatic officers of the European Union within the ambit of this legislation. In the second reading debate on this bill I raised a concern that we were dealing with only a part of the issue, because there is a companion piece of legislation to the Diplomatic Privileges and Immunities Act called the Consular Privileges and Immunities Act, which is word for word identical to that particular Act.

💬 Stephen Franks: That’s not for crooks.

If the member bears with me, he will get the point that I am coming to. I was about to say, before he interjected, that this issue is not so much of relevance to the International Criminal Court as to the amendment to the bill that comes in by way of the Supplementary Order Paper relating to the European Union, because that amendment does potentially introduce the issue of consular representation by the European Union.

💬 Stephen Franks: That’s fine.

I agree with the member that that is fine. But if the member just bears with me, he will find the point I am making is that in bringing a provision into this bill that deals with diplomatic privileges and immunities, it may well be in time we will need to make a similar amendment in respect of consular privileges and immunities with regard to any officers of the European Union. In that event, it would seem to me more logical that the entire Diplomatic Privileges and Immunities Act and the Consular Privileges and Immunities Act, which are currently separate pieces of legislation, be brought together as one, because the provisions in them are broadly identical.

I make the point that if there was to be a change in the title of this bill, it should be to reflect the fact that this legislation deals, potentially, with consular privileges and immunities as well as diplomatic privileges and immunities, which is what the bill contains. That is not particularly relevant with regard to the provisions of the bill, as they relate to the International Criminal Court and I do not imagine, even in its most extreme flights of fancy, that it will open anything of the equivalent of consular offices anywhere. But it is relevant, potentially, in the context of the extension of the provisions in the Supplementary Order Paper to include the European Union and any moves that that union may make once it establishes its office in Wellington—for example, to establish sub-offices, as it does, in Auckland, Christchurch, or other parts of the country. At that point we would need to consider the issue of any potential privileges by way of consular immunity to be extended to those staff, and, as the law stands at the moment, this Parliament would find itself having to pass separate legislation to give effect to those privileges.

So my point is that maybe we ought to consider at some point in the future— and the title gives rise to the debate—wrapping the two pieces of legislation up in one, and having a “Diplomatic and Consular Privileges and Immunities Act”. That would then allow all those things to be dealt with in one place, rather than in the piecemeal way that inevitably is the case at the moment. Every time we wish to extend recognition to a country, we do so firstly by way of extending diplomatic privileges, and then at a subsequent point we determine whether we want to extend consular privileges. That seems to me to be an unnecessarily protracted process, and I think the time is overdue for a review of it. That does not mean the Government would automatically extend both privileges to a country, but it would have the option of extending either privilege.

The title of the bill does not tell us what is really happening, and indeed in the preceding debate, with the exception of Dr the Hon Lockwood Smith, everyone’s speeches went immediately to the substance of the debate. I want to speak a little bit on those points, because they are important. I think it is inappropriate that the Government, through a bill that is primarily about the International Criminal Court, adds in at a very late stage the European Union through Supplementary Order Paper 190. There are no doubt good and valid reasons to do that, but it is just that it is an unfortunate process whereby a statute being passed for one purpose, ends up being used for another separate purpose. As a matter of legislative form, that would be wrong.

Last week, there was extensive discussion about the role of the International Criminal Court. The ACT party in particular, and Mr Franks especially, has very directly stated that party’s opposition to the court. However, on analysing new section 10D(2)(d), to be inserted into the Diplomatic Privileges and Immunities Act by clause 3 of the bill, he may have a point, and I would invite the officials and the Minister to look specifically at that point.

I think everyone, and perhaps even Mr Franks, would concede that obviously there should be immunity for the judges of the International Criminal Court, and for the prosecutor, deputy prosecutor, and registrar. Frankly, that is common sense, and there should be immunity for States parties, too. However, Mr Franks has raised an important point around counsel, witnesses, victims, and experts. I would particularly focus on the term “witnesses”. I think, as we know from observing the trials in The Hague currently, many of the witnesses, usually by some form of immunity agreement, have agreed to testify against a superior officer, even though that witness was directly implicated and involved in the crime against humanity, usually a grave massacre.

In that situation, whilst the immunity may be against prosecution before the relevant tribunal, one would hardly think it necessary that the witnesses have a general exemption from the criminal law itself of the place of jurisdiction of the tribunal. Imagine, for instance, there was a hearing of the International Criminal Court in New Zealand. Quite clearly, witnesses could be called. Some of those witnesses might have some involvement in the massacre. Surely, it cannot be our intention—and maybe that was a matter overlooked by the select committee—to also be absolving those witnesses from criminal conduct in New Zealand, or immunity generally from New Zealand law. So I would counsel the Minister and the officials to look at that point in particular. I wonder whether the Minister in the chair, Marian Hobbs—or, indeed, Mr Franks—should be putting forward a Supplementary Order Paper relating to that clause.

We certainly do not want to pass law that would make us a laughing stock and that—more than that—would enable people to perpetrate crimes. It is a grave matter. We must ensure our law is right. The next hour or so is the last opportunity to get this legislation right. There is no other opportunity, except by an amendment bill or a Statutes Amendment Bill—but why wait? Why not do that work now in order to make sure we get this legislation correct?

I understand Mr Franks’ broader objections to the International Criminal Court—and I generally disagree with them—but I think he has raised a very valid point on this particular issue, and it would behove the Government to look carefully at it. I will take a further call when we come to later provisions, particularly those amended by the Supplementary Order Paper in the name of Mr Locke—which is breathtaking in its implications, I think we could say—but I will turn to those points later on.

This is straightforward legislation, and I note that when the Foreign Affairs, Defence and Trade Committee considered it, its members noted that they had no matters to bring to the attention of the House. I really had not intended to speak on this bill, especially on the title, because it is so clear-cut. Nonetheless, we seem to be having speeches from every party in the Chamber, and it seems to me that that is a clear example of having too many members of Parliament in the Chamber. It is a clear example of the fact that the membership of this House needs to reduced to 99. That would reduce some of the time-wasting that takes place, so often, on the title. The reduction to 99 members is part of New Zealand First policy. I do not intend to take any more time, because, as I have said, we support the bill, and nothing further needs to be added to my speech.

I move, That the question be now put.

Motion agreed to.

Clause 1 agreed to.

Clause 2 Commencement