Crimes and Misconduct (Overseas Operations) Bill

I thank the Committee for the opportunity to contribute to the debate on Part 2, and I am certainly looking forward—

💬 Darren Hughes: Thank you!

I thank the junior whip on the Government side of the Chamber. I am certainly looking forward to the contribution of the Minister on this part, because this is where the substantive regime in respect of crimes and misconduct prosecutions is founded. A number of issues arise in connection with this part. First of all, a distinction is drawn between police officers and civilian members of an overseas operations force. I doubt whether that is, in fact, an appropriate distinction to draw. All people are equal under the law. Why should one class of person be subjected to a different regime from another class of person? I am speaking of police officers on the one hand and civilian members on the other. It is all very well to say that military personnel may be in a different class, because of the range of responsibilities their task entails. But I would not have thought that it is necessarily a logical argument to create the division that occurs in this part.

Of course, there is an aspect of protection in this part, in that no information—no charge, in other words—is to be brought against any person without the consent of the Attorney-General. It is difficult to see how the present Attorney-General would be a fit and proper person to make such a judgment, but presumably it would be founded on the view of her advisers. One would certainly hope that in the context of the decision-making roles that the Attorney-General is asked to perform, there would be well-supported advice before she made such a decision. That is certainly important, as I reflect on some recent issues that have occurred.

There is a constitutional issue, however, that is perhaps worthy of brief comment, and an earlier speaker touched on it. The issue is that, in general terms, New Zealand has taken the line, consistent, I think, with high constitutional principle, that the basis upon which jurisdiction should be exercised is not nationality but territoriality. We just need to reflect on that by testing the proposition that a New Zealander on a Belgian ship in a French river should not have New Zealand law apply to him or her. Where, however, it has been decided that the territorial principle is the correct approach to take, New Zealand has been hugely reluctant to extend that to a principle of extraterritoriality. We have made some exceptions—for sex crimes, for example—where we have seen New Zealand law reach out into the country where a particular offence has occurred. We have also seen that in the area of terrorism. But it is truly rare.

I would argue, in respect of civilians in another location, that the primary inquiry should always be about the nature of the criminal justice system in that particular country. If there is a stable legal system, should it not be the case that an offender, a New Zealander or otherwise, should be dealt with in accordance with the laws of that particular jurisdiction? I do not wanted to be churlish about these issues, of course, and as I have said National supports this bill. But when one reflects on the constitutional implications of some of the things that are planned, then I guess a degree of reservation must be entertained.

Another point relates to the New Zealand Bill of Rights Act. The Foreign Affairs, Defence and Trade Committee, which briefly considered this legislation, contemplated that there should be incorporated a New Zealand Bill of Rights Act standard. It seems to me that the commentary, which discusses the necessity of having a reference to the New Zealand Bill of Rights Act, is at the least weak. It states that the people who are dealt with by New Zealand law in foreign countries would have exactly the same protections as New Zealanders who are dealt with in this country, and it seems inappropriate to include reference to the New Zealand Bill of Rights Act. So there is an aspect of disadvantage for those people who are in foreign countries.

I take this opportunity to take a short call on Part 2 of the Crimes and Misconduct (Overseas Operations) Bill. As my colleague Mr Richard Worth said, there are constitutional issues in relation to the bill that need to be considered. There is also the issue I have raised before over the actual jurisdiction.

When I looked at how the bill would operate in the unlikely event that the Attorney-General would need to make use of it, I asked myself how clauses 5 and 6 would operate. One of the issues would be the provisions in clause 5(2), which state that the jurisdiction applies when the offence has been done or omitted within New Zealand, where it would constitute an offence. I had a concern at the second reading about how that would operate if a person who is accused of an offence said that he or she was not subject to the jurisdiction, because the offence did not occur, or because he or she did not commit it. The bill does not state that if someone is accused of the offence then it is deemed that the place where the person is accused of having committed the offence is in New Zealand. I am just wondering whether that is a chicken and egg situation happening. I would query very much, if there were a prosecution, whether a defence would be that the jurisdiction did not apply until after the offence had been proven.

Clause 6, “Powers of arrest and detention”, relates only to when someone is alleged to have committed an offence. I wonder whether the Minister in the chair, the Hon Ruth Dyson, or the officials who are available could confirm that clause 5(2) would still operate on the basis of an allegation, rather than a proven situation. I am sure that the Minister is taking note of that. It is a situation where we would not want this bill—

💬 Hon Ruth Dyson: 5(2)?

Yes. We should make sure that the bill goes through in a way that it does not come back at a later stage to hit us. I see that it is certainly covered in clause 6, but that clause is about the arrest. It is just the actual jurisdiction thing. That is the main point that I wanted to make on this part.

It was interesting listening to the comments raised by Mr Worth in his discussion—[Interruption] I was not listening to the comments made by Judith Collins. I am not a legal beagle and I have never really wanted to be, but to help the Committee—and I thought the Minister in the chair, Ruth Dyson, might want to comment on this—I can advise that the lack of distinction between civilians and the police members of an operation was considered and discussed. It was suggested that consideration be given to deeming civilian persons on a non - United Nations deployed mission to be members of the police. The concern appeared to be that there was insufficient distinction between the situations of the police and civilian members of an operation.

The Foreign Affairs, Defence and Trade Committee did not consider that greater distinction than at present was warranted between the two, because in reality both would be subject to prosecution for the same sorts of offences, regardless of whether they were police or civilian members of the operation. It was put that if police members have defences available to them, because of their policing role, those defences would be available by virtue of their policing role and status. The committee accepted the view that it would not be wise to take an approach that sought to treat civilian members artificially as police personnel, not least because of the different consequences that may flow in terms of the defences available to them.

I come now to the New Zealand Bill of Rights Act issues. Those issues were discussed and considered. I draw members’ attention to the commentary on the bill. There was subsequent discussion, and legal advice suggested it was arguable that the current arrest provisions may give police powers to arrest only in New Zealand. Accordingly, the New Zealand Bill of Rights Act would apply by virtue of section 3 of that Act. Section 3 provides that the New Zealand Bill of Rights Act will apply only to acts done by “any person or body in the performance of a public function, power, or duty conferred or imposed on that person or body by or pursuant to law.” The committee did not believe, however, that there would be value in clarifying the bill. So it is clear that police would also have the power to arrest overseas.

A number of changes and amendments were made. One of them was to clause 6(2), to read: “(a) the person may be arrested without warrant within or outside New Zealand,—or (b) a warrant for the person’s arrest may be issued in New Zealand and executed within or outside New Zealand,” A new subclause (4) was added, stating that “Any person arrested outside New Zealand may be detained in custody outside New Zealand for as long as is reasonably necessary to enable the person to be taken to New Zealand.” Quite a bit of discussion goes on in the interdepartmental report on the submission that deals quite extensively with the New Zealand Bill of Rights Act, and any relevance. The bottom-line recommendation made was that clause 6, “Powers of arrest and detention”, be amended to make it clear that the police would have powers of arrest overseas. The committee did not recommend any changes to include a reference to the New Zealand Bill of Rights Act. If we read the interdepartmental advice, we see that the matter is dealt with quite clearly there.

Part 2 agreed to.

Clause 1 agreed to.

Bill reported without amendment.

Third Reading