Diplomatic Privileges and Immunities Amendment Bill

Prior to the passing of Supplementary Order Paper 190, which included new clauses 2A and 2B, which really adds the European Union in now as having the same rights and immunities as a State, as has been well pointed out, I personally was not particularly aware that New Zealand had an enormous degree of difficulty in actually making representations to the European Community in the past, and it to us. I think many of us are well aware that European commissioners have visited New Zealand in the past; officials of the European Commission have visited us in the past, and it does seem that the idea of this legislation being necessary and urgent to pass so they can open an office is rather a long bow to draw, given the 40-year history of the relationship between the European Union and New Zealand.

The clause we are dealing with now actually relates to the privileges and immunities of the International Criminal Court. It is crucial that we deal with this clause properly, because although much of it is common sense, and obviously the immunities and privileges of the judges of the court, the prosecutors, the deputy prosecutors, and registrar go without saying, a significant question has been raised about witnesses, counsel, and so forth.

I know that the Minister's officials are looking at that, and I guess they will have a bit of time between 6 o'clock and 7.30 p.m. to assure themselves that the legislation is correct, and make whatever necessary minor amendments are appropriate. The difficulty is that at the moment the legislation as drafted, on the face of it, places the witnesses as if they were of the same class and category as judges. I realise that, if one goes to both the Rome Statute, which I have done, and to the Agreement on the Privileges and Immunities of the International Criminal Court, that is not the case. But one actually has to go to those provisions to ascertain that. On the face of the legislation itself, that is not apparent. I believe we need to pay greater regard to what the legislation is saying on the face of it, the intent.

So my suggestion to the Minister is that an amendment be drafted—and I suggest there is time before this legislation is voted on—that clearly indicates, on the face of the legislation itself, without the necessity of the reference to article 48(4) of the Rome statute, or articles 18 to 22 of the protocol, the separate situation of the witnesses, counsel, and so forth, many of whom will be war criminals themselves, gaining immunity to give evidence against a more serious war criminal; but they are in quite a different category from the judges, prosecutors, deputy prosecutors, and registrar. It is simply bringing into the legislation what is apparent in the Rome Statute and the protocols.

Legislation has an important role in public education. The public of New Zealand ought to be able to, broadly speaking, read on the face of the legislation its intent; and on things of this nature, that is doubly important. I believe there is a relatively easy opportunity, which I believe every member would endorse, to just make that plain, so that it becomes clear. I presume we will be dealing with Mr Locke's Supplementary Order Paper as a separate debate, so I will leave my comments until then.

The CHAIRPERSON (Ann Hartley): That will actually be ruled out as being outside the scope of the bill.

Thank you. Well, that is appropriate. It is worth knowing what Mr Locke wanted to do. He wanted to extend the scope of privileges and immunities to any member of a non-governmental institution, as if the person were a diplomat, or a member of the European Union, or a State party, or an official international agency—like the United Nations or one of the agencies of the United Nations. I would have thought that casual observation would tell us that that is wrong. The reason it is wrong is this: what is the purpose of privileges and immunities? The reason is primarily to exempt them from taxes, the normal rules of criminal procedures—and I do not believe it can be possibly within the reasonable contemplation of this Parliament that we would, in essence, extend to private citizens those kinds of immunities. I know that Mr Locke has a particular political point he wishes to make, but making that point means he is actually saying to members of non-governmental organisations that they could commit crimes with impunity. That is an extraordinary situation. Are we going to have the cars of members of Greenpeace parked up and down Lambton Quay—

The CHAIRPERSON (Ann Hartley): I am sorry to interrupt the member, but he really does need to come back to clause 3.

But Mr Locke's amendment is to clause 3.

The CHAIRPERSON (Ann Hartley): No, it is a new clause. I advised the member of that, just to be helpful, but he cannot speak to that now. The member needs to confine himself to clause 3.

Just as a matter of clarification, will there be a separate debate on Mr Locke's Supplementary Order Paper, which is actually an amendment to clause 3?

The CHAIRPERSON (Ann Hartley): The answer is no, because the amendment will be ruled out of order.

That is why I have to be able to take the debate now on that point.

The CHAIRPERSON (Ann Hartley): No, I need—

I wish to make the point that it is extraordinary that anyone could suggest that members of Greenpeace, in their smoky old cars, would be able to park up and down Lambton Quay, freely, without getting any parking tickets, or whatever.

The CHAIRPERSON (Ann Hartley): I need to bring the member back to clause 3.

I just wish to—

The CHAIRPERSON (Ann Hartley): I am going to terminate the speech if the member does not do that.

I am just coming back to the issue, because I have dealt with that other point now. I would ask the Minister that she does bring back to the Chamber after 7.30 p.m. an appropriate amendment so that it is plain on the face of the legislation, without the need for reference to either the Rome Statute or articles 18 to 22 of the agreement, that witnesses in the International Criminal Court would have particular immunity.

Sitting suspended from 6 p.m. to 7.30 p.m.

I was talking about the desirability that the legislation should say on the face of it that the immunity and privileges of counsel, witnesses, victims, and others, shall be clearly different to that of the judges, prosecutors, deputy prosecutors, and registrars of the court. I have had discussions with the Minister and her officials, and they are of the view that it is not necessary to make such an amendment, because there is sufficient reference to article 48, paragraph 4 of the Rome Statute, and articles 18 to 22 of the agreement, that that is clearly sufficient to show they are different. My objection to that is this: it does not say on the face of the legislation we are passing today that they are different; and they are different. Surely we want to be able to signal clearly, on the face of the legislation, that someone who has received immunity from prosecution acting as a witness for the worst criminals who have committed grave breaches of humanitarian law, does not have the same kinds of immunities and privileges as the court itself and the representatives of the court.

I do understand the argument of the Minister, and I say that we have the opportunity here to ensure that, on the face of the legislation, when people read the statute itself, they know there is a difference. A modest amendment will achieve that. It will reflect article 48(4) of the Rome Statute, and it would be read directly into the legislation. I believe that that kind of approach would be beneficial to our law, not just in this instance, but generally, where we do not often make these calls.

As the last member just referred to, I am not prepared to support the amendment that he is proposing. This is an argument that has also been put up by Mr Franks. What I understand them to be arguing is that whereas they can accept that judges and prosecution lawyers will be granted immunity under the International Criminal Court as is in the bill, they have this terrible fear that if the court were sitting in New Zealand—and this is a really long bow to draw, by the way—and had brought across Mr Milosevic, which I think was the example that was given, and witnesses to defend Mr Milosevic were being called, they would automatically be given immunity.

Let me make two things very clear. The first is that the immunity is limited, and this is in the bill; and it is in the bill, quite clearly, by cross-references to the Rome Statute, and to the Agreement on Privileges and Immunities of the International Criminal Court. Mr Mapp argues that we should therefore actually spell out the cross-reference by amending the legislation; I would say to him that that would be very tortuous. If in regard to the Hazardous Substances and New Organisms Act I cross-referenced to every different international agreement and wrote it out, those regulations—and those laws are already 10 to 20 centimetres deep—I would be writing out legislation in full for ever. I do not think that that is good lawmaking, and I do trust that there are international lawyers who are fully au fait with doing the cross referencing to the Rome Statute.

The second reason I would give as to why I do not think this is necessary is that following this legislation, if this legislation gets passed and the amendment becomes law, there will be written an Order in Council, which again is a public document. The Order in Council will spell out very clearly that such immunities will not be necessarily available—that they are limited—and they will not be there holus bolus to everybody who comes in and who may be a threat to New Zealand in the terms of someone witnessing for Mr Milosevic. I do think it is a kind of “dancing on the head of a pin” argument that we were given here tonight. I can assure anyone listening that New Zealand is secure under this legislation.

It is important to have immunities for all those coming into International Criminal Court hearings, because I do not think we would otherwise have them held in New Zealand. They would not be delegated here if there were a danger of the witnesses, experts, or anyone, being snaffled away and tried for other offences. So it is important to have the integrity of the court here, or wherever in the world. But in speaking to sections 10D and 10E in clause 3, I say that the intention of my amendment I telegraphed earlier was in relation to those sections. I think it is important to fill in what Phil Goff talked about in his second reading speech—that there would be a process of extending protection to persons attending a specified conference.

The essence of my approach in the amendment was that with important conferences such as peace conferences—and I referred to the question of Aceh in my earlier comments—we have to give respect and status to those people attending, and that helps the peace process. As I said, the problem with Aceh was that they had this conference in Tokyo and had negotiators from the Indonesian Government side and from the Aceh side. Those talks broke up on the initiative of the Indonesian Government, and then the negotiators were arrested back in Aceh. There was not sufficient respect for the negotiators generated through the international community.

One thing I would like to do, if we are going to be a venue for peace conferences—there was talk the other day of our perhaps being a venue for a peace conference on Kashmir, and one might have different parties coming into that conference—is to give them full status. It is at the discretion of the New Zealand Government. It is not something that the attendees automatically receive. But one might have the option to give the parties—not only the governmental parties, but the non-governmental parties—a status that includes diplomatic protection and immunity as part of that process. One can imagine that with the Middle East as well. One perhaps would have to give status to the Palestinians as well as the Israelis.

I also mentioned in my second reading speech the question of Algeria, which is very current at the present time with Ahmed Zaoui being in prison here. We may be hosting some reconciliation conference here of the State party, the Algerian regime, and non-State actors like the official representatives of the Islamic Salvation Front (FIS) that Ahmed Zaoui belongs to. The FIS has official representatives in Sydney, Washington, and Switzerland, and if they came here they might be given some status too. Mr Zaoui, when, hopefully, he is out of prison shortly, could participate in that sort of event as well.

The intention of my amendment is that the Government can, as part of its general approach of extending the bill beyond the International Criminal Court to international meetings—UN, OECD, World Trade Organization, etc., or any specified conference—have a provision that non-Government actors can be designated as well, whether or not those non-Government actors are part of an official State delegation. The question of Greenpeace came up earlier this afternoon; they may be part of an official delegation as non-Government organisation members, particularly on environmental issues, or non-Government organisations at a very high level. Amnesty International representatives, for example, might come from abroad to a particular conference we might be holding here, and the head of Amnesty International from London perhaps could be given that particular status. I think the bill should be flexible enough to allow that.

I raise a point of order, Mr Chairperson. It would assist with the Committee’s debate of this bill if you could give us guidance as to what this particular debate is about. Prior to the dinner adjournment my good colleague Dr Wayne Mapp, in addressing clause 3, referred to the amendment tabled by Mr Keith Locke that Mr Locke has just debated during the last 5 minutes, but the Chair of the Committee ruled that my colleague was out of order and was not allowed to speak on that Supplementary Order Paper during the debate on clause 3. That is fine; the Chair ruled in that way. However, you appear to have just allowed Mr Locke to spend the last 5 minutes commending his new clause 3A as part of the debate on clause 3. I think you can see the difficulty we are getting into. Either we are meant to debate Mr Locke’s rather strange new clause 3A, or we are not. At the moment we have had two different rulings, because the previous Chair got quite forthright with my colleague Dr Mapp and threatened to terminate his speech. If you could give us some guidance, I would appreciate that.

I thank the honourable member for that. The member is right, and I am wrong. The previous Chairperson did pull up Wayne Mapp for debating that amendment in the way that he did. The ruling stands from the previous Chairperson, and Keith Locke should not have debated that clause. He was out of order in doing so. I accept responsibility for that.

I raise a point of order, Mr Chairperson. I wonder whether you would like to reflect on that ruling. I appreciate you feel that you must uphold the ruling of the Chairperson before the dinner break. Her ruling was such that Mr Locke’s amendment could not be debated because it was to be ruled out of order. However, it does not seem to me that a Chair of the Committee can rule an amendment out of order before it has even been voted on. Surely that is a matter that takes place at the time of the vote. So long as an amendment is extant—that is, until it is voted on—if it relates to a particular part, surely it, and any other amendments to that part, can be debated, just as Mr Locke has already done in this case. Otherwise, the effect of that ruling would be that Mr Locke could not even, firstly, put his amendment in, or, secondly, speak to it. That would seem to infringe on the privileges of members to be able to table amendments and debate them. I ask you to reflect upon that ruling, because it will have the effect of limiting the rights of members to debate on amendments and Supplementary Order Papers that they may move.

I raise a point of order, Mr Chairperson. I support that point of order, but I was not in the Committee just before 6 p.m. so I am not sure why my amendment was ruled out of order. I am not sure whether that was justified, but I would be interested to hear your ruling on Mr Mapp's point, and also to hear why my amendment was ruled out.

I thank both members for their contributions. We will try to clear the matter up. A separate question would have had to be put on Mr Locke’s amendment, as it proposes a new clause. However, the question will not be put, because the proposed new clause is outside the scope of the bill. To allow debate would require an instruction from the House, as was the case for the Minister’s amendment dealing with the European Union.

I raise a point of order, Mr Chairperson. I am just a little unclear about when the decision is made that an amendment that has been lodged can be spoken to or is ruled out of order. The point is that Dr Mapp started to talk to the amendment. He would have probably given 2 minutes’ worth of discussion on that before the Chairperson at the time said he had to stop speaking about the amendment, or she would terminate his speech.

My understanding is that if an amendment has been tabled we can speak to it, and it is only at the time of voting, when you come to put the vote on a particular part or clause, that you then rule it out of order and we do not get to vote on it. To my knowledge that is how we have handled amendments in the past, and I think that when Dr Mapp spoke to the amendment he was right to do so, just as Mr Locke has just spoken to his amendment, as well, without any interference from the Chair.

I seek your guidance as to the procedures that we should follow, because, as Dr Mapp said, there are actually two different versions. My view is that the decision is made when we come to vote and an amendment is ruled out of order.

The reality is that Mr Locke’s amendment is not an amendment to clause 3. The debate on clause 3 must be relevant to that clause; it cannot deal with matters contained in new clauses. Mr Locke’s proposed new clause is not an amendment to clause 3.

I rise for the ACT party effectively to endorse the proposed amendment that Mr Mapp suggested to clause 3. Mr Mapp’s purpose is to make sure that the Diplomatic Privileges and Immunities Act records that there is a difference in the kinds of immunity that are intended for diplomats and other heads of missions or heads of State who visit New Zealand and the kind of people who might be called, and who might be in New Zealand, if there is a court proceeding under the International Criminal Court statute.

I appreciated the fact that the Hon Marian Hobbs took a call. She endeavoured to explain that the amendment was not necessary because it would simply repeat what she said is already contained in other legislation, and in particular in the Rome Statute, which is appended to the International Crimes and International Criminal Court Act. I do not think she dealt with the issue. The Hon Marian Hobbs did not actually tell us what it is or which provisions it is in those other documents that make this bill understandable. I have tried to follow the cross references. For example, there is a cross reference to article 48 of the Rome Statute. It states: “Counsel, experts, witnesses or any other person required to be present at the seat of the court shall be accorded such treatment as is necessary for the proper functioning of the court in accordance with the agreement on the privileges and immunities of the court.” I do not know what agreement that refers to. Maybe the Minister can tell us there is a very straightforward answer, but as I read article 48, it probably refers back to the privileges and immunities in sub-article 2, which relates to the court—that is, judges, the prosecutor, the deputy prosecutors, and the registrar. It states that they enjoy the same privileges and immunities as are accorded to heads of diplomatic missions.

Our argument is that that is inappropriate for witnesses. It is probably inappropriate for some of the counsel whom war criminals might engage. It is certainly inappropriate for the category of people who are called “other persons required to be present at the seat of the ICC.” There is no reason why one of Milosevic’s former henchmen, if here for a trial, should be immune, for example, from the obligation to pay duty on his alcohol purchases, or customs charges, when he comes into the country. There is no reason why a thug should be immune from the ordinary criminal law. I am not saying that they should be exposed to New Zealand criminal law for what they may have done in the past, but for what they do while they are in New Zealand, even something as trivial as their traffic offences. I do not see any reason why we should be leaving open the possibility that a bunch of Milosevic’s henchmen could ignore even their parking tickets. I would like the Hon Marian Hobbs to explain to us just why that is excluded.

It may be that they are referring to another agreement. I cannot find the text of the agreement in the time I have available. But if there is a passage of the agreement that is separate from the Rome Statute that makes this clear, it would be a reassurance to know that it did make it clear.

Certainly, sub-article 4 of article 48, which was mentioned by the Minister, does not comfort, at all. It simply says that they get the privileges previously referred to—I think that is what it is saying—in accordance with the agreement on privileges and immunities of the court. Unless the agreement says that there is something very specifically different for witnesses, then we are putting into our law something that is unnecessary. It is a privilege that may come to embarrass. I fully agree that there must be a form of immunity for witnesses and for other people coming in. We do not want the embarrassment, for example, of someone moving to arrest General Pinochet if he were in New Zealand as a witness for the trial of some of the henchmen who might have done what they did all those years ago.

I move, That the question be now put.

I believe that in clause 3, which inserts new sections 10D and 10E into the principal Act, there is an important issue at stake that is very closely aligned to what my colleague Dr Wayne Mapp, and also Stephen Franks, have been debating. What strikes me about sections 10D and 10E, in particular, is this. I have been a great supporter of the fact that under New Zealand’s constitutional arrangements the power to enter into treaties resides with the executive. I think that is terribly important. It is not the case in the United States, and I believe the fact that Congress retains that power causes the United States some difficulties. Here we have a situation where this legislation will give effect in our domestic law to an international treaty, the Rome Statute, and that is fine. But we have always argued, in supporting the power of the executive to enter into treaties, that where those treaties affect our domestic law, this Parliament should then have the power to decide whether it is prepared to amend our domestic law in order to accommodate those treaties. I would like the Minister in the chair, Marian Hobbs, to address the issue that the wording of new sections 10D and 10E circumvents the power of this Parliament to do that. If articles 18 to 22 of the international treaty—the Rome Statute—are changed through the process of change to that agreement, those changes will automatically become part of our law in New Zealand without this Parliament having any further say in the matter.

Let us say, for example, that at the moment—although this is not clear on the face of this legislation—articles 18 to 22 of the agreement set out a set of diplomatic privileges and immunities that Mr Franks and Dr Wayne Mapp may be satisfied with. It may set out a set of privileges and immunities that do not protect witnesses from breaking New Zealand’s criminal law, for example, or from not having to pay their parking fines, or anything like that. But the point I am making is that if the international agreement is changed—in other words, if the international treaty is changed—then because of the way that this legislation is worded, our domestic law will be automatically changed. That, I believe, will bring into disrepute the power of our executive in this land, under our constitution, to enter into international treaties. I support that power; I believe it is a very important power. I have been New Zealand’s international trade Minister, and I support the power of the executive to enter into treaties. But I think this kind of legislation, which then enables those treaties to automatically amend our domestic law, needs to be thought through quite carefully.

So while I support our granting immunities and privileges to the International Criminal Court, I think that the way it is done in this bill is not good. I am sure the Minister can see that if the articles of the Rome Statute, or the articles of the agreement that is consequent upon that, are changed by international agreement, so will our domestic law be changed. As I look at new section 10D(2)(d), I see any changes to articles 18 to 22 of the agreement will automatically change our domestic law. If I am wrong I am happy to accept that, but I would appreciate it if the Minister in the chair could explain why I am wrong. But if I am not wrong, that is a serious issue. We have always argued in the past that where an international treaty changes our domestic law, this Parliament should have the power to decide that. But according to the way this bill is worded, instead of putting into the legislation what the international treaty has required New Zealand to do, we have worded it in such a way that any change to that international treaty will automatically change our law. We simply refer to articles to 18 to 22 of the Rome Statute, without setting out what they state. So if those articles are changed, there is no reason that this Parliament would have the chance to pick up the change and look at it. There could be a change that states that witnesses can be absolutely immune from the criminal law of the country in which the International Criminal Court is operating. Let us say that became an agreed change to the international treaty. This Parliament would then have no say about how that affected our domestic law.

I move, That the question be now put.

The amendment in the name of Keith Locke to insert new clause 3A is ruled out of order, as it is not within the scope of the bill.

Clause 4 agreed to.

Bill reported with amendment.