Visiting Forces Bill

I have nothing to add to the Hon Peter Dunne’s comment. They are spot on. We are into Part 2 where some of the clauses the member raised will be examined. I was interested in his reference to clauses 12 to 14, and perhaps at the risk of asking across the Chamber, I suspect I will leave those clauses to Mr Dunne, as I deal with clause 8, because I think this is where the Foreign Affairs, Defence and Trade Committee was put in the position where it had to produce a new clause to reflect the jurisdictional dilemmas, I guess, that we found ourselves in. Because frankly, for those of us who are not experts in military law—I am not sure whether we have any in the House, but I suspect that Richard Worth or Ron Mark may be—

💬 Ron Mark: I used to be in the front.

He used to be in the front. I am certainly not an expert in military law but reading it as a lawyer I found it difficult at first glance, so it is worth walking the Committee through this. Because what the new clause says—and the officials are to be congratulated on working their way through this; it was not straightforward—is that in the absence of a status of forces agreement the service authorities of a visiting force to another country or State have the primary right to exercise criminal and disciplinary jurisdiction in respect of certain offences. So essentially the bill says the controlling country of those forces gets the first shot, shall we say, at the alleged offence.

In the absence of new subclause (1A) not covering those offences—and they are quite specific—and the matter not falling within that primary jurisdiction, then it reverts to a secondary jurisdiction; that is, the jurisdiction of the New Zealand courts, or the host country in this case.

The difficulty comes—and this is where the Foreign Affairs, Defence and Trade Committee was concerned about the randomness, if there is such a word, of these types of enforcements—if we cannot get agreement at that point as to whether it is the primary jurisdiction that is being exercised; that is, the controlling authority, the controlling State, the controlling country of the forces, or the secondary jurisdiction of the host nation, New Zealand. Well, then it seemed that it was simply a matter of diplomatic chit-chat, and of the two countries getting around a table and saying: “Well, Bob, I suspect that you’d better handle this one. It looks a bit untidy, it falls through the cracks a bit.”

That was the uncertainty, I guess, that members of the select committee were a bit concerned about. I know that my colleague Ron Mark will be anxious to make a contribution on this point, because it seems to me that it is a bit messy when military law and international law in respect of jurisdiction falls back on diplomatic niceties. Because the certainty around drafting law, and having clear and concise language, versus the kind of “diplo - cocktail party speak” that goes on between diplomats, I would have thought, are two worlds apart. So that is a concern where, if we are not able to get a clear response to whether the offence falls within new subclause (1A) or new subclause (1B) of clause 8, that in the end, I guess, is just a matter of those countries negotiating. The Minister may well correct me if I am wrong on that, but that seems to be the position as I understand it.

I am not sure that that is wholly satisfactory. But I am sure that we looked at it carefully enough in the select committee to say that, well, there is probably not much else we can do; that if it is not clearly primary or secondary jurisdiction, there is a bit of a fall-back to that sort of diplomatic chinwag. We do not live in a perfect world—if we did, the Budget would not have passed—so we will keep pressing on with this legislation. I would be interested in the comments of the chairman of the select committee, the Hon Peter Dunne. I would certainly be interested in Ron Mark’s comments, and very interested if the Minister in the chair would be able to clarify for me whether my interpretation of the fall-back position is correct.

There was rather a tetchy exchange with Mr Mark a little while ago, but there now seems to be a degree of bonhomie between us. I am grateful that he has waved me into the firing line at this stage. I may say, with friends like that, who needs enemies, but that is for another day.

Can I pick up the comments that Mr Power has made—and members will be getting a sense already that the Foreign Affairs, Defence and Trade Committee operated on a multipartisan basis in dealing with what is a complicated issue behind a relatively simple facade. As I said during the debate on the earlier clause, we all know the point that we want to end up at. It is a matter of how we get there.

If I go to clause 8, which Mr Power has covered—and I should just advise members that there is no collusion between any of us speaking here, in terms of who is covering what; it just happens to be the point of the argument—what we wanted to be clear on was that the procedures that were in place for dealing with offences committed by visiting forces in New Zealand were quite well spelt out in terms of where the authority lay, and those cases where the authority would lie off shore were also spelt out.

Mr Power raised, I think, what is one of the grey areas. I cannot remember his precise language, but it was about “diplomatic-speak” and the niceties of quiet conversations about how one deals with particular problems. While the legislation, to a large extent, tries to delineate the categories, there will always be those cases at the margins where a quiet word in someone’s ear and a rushed trip home at night are going to occur. I think we just have to be mindful of that in the whole process. This legislation seeks to, I guess, corral those opportunities to the maximum extent possible by being quite specific.

I look particularly at new subclause (1A) that has been inserted into clause 8. But then one also has to look at subclause (1B) alongside that, which states: “In the absence of an applicable agreement covering the matter, New Zealand courts have the primary right to exercise jurisdiction in respect of any act or omission that—(a) is alleged to have been committed by a member of the visiting force, a member of its civilian component, or a dependant; and …”. That is an attempt to catch those difficult situations in a way that, I think, Mr Power was referring to.

I want to move on from clause 8, and look, if I can, at some of the clauses that I alluded to a little earlier on, particularly clauses 12, 13, and 14. Clause 12 relates to the provisions of the Armed Forces Discipline Act, and makes it clear that in respect of the Visiting Forces Act, as it will be, certain sections of the armed forces discipline legislation, and presumably the accompanying regulations, apply with respect to the activities of a service tribunal operating within New Zealand.

One needs to look at that alongside the provisions of clause 14, which have the potential to be the most difficult. Clause 14, “Manner in which sentence of imprisonment or detention may be served”, states: “(1) If a member of a visiting force, a member of its civilian component, or a dependant has been sentenced by a service tribunal of the visiting force to imprisonment or detention, the sentence may be served in accordance with Part IX of the Armed Forces Discipline Act 1971.” One of the difficulties that we will have to address, potentially, in respect of that, is the type of situation that we might encounter where actions take place that are extremely marginal, to say the least, and whether we have the capacity in terms of longer-term detention to hold people here for significant periods of time. We have always seen these offences, I suspect, as relatively short term in nature. The question will arise, inevitably, if the sentence is to be of some duration. How will that fit alongside the provisions of clause 14(1)? Let me give members a parallel, but in some sense, a totally unrelated example.

💬 Simon Power: Ha, ha!

No, this is not as silly as it sounds. It is parallel in the sense of the dilemma; it is unrelated in the sense of the particular circumstance. I am thinking of the French terrorists. When we got these people we tried them according to New Zealand law. We then sentenced them—I think, from memory—to 10 years’ imprisonment in New Zealand, leaving aside the diplomatic flow that followed that sent them off to a tropical island for the balance of their sentence. The problem we actually faced was how, in the civil prison system, we coped with having to detain people convicted of an offence that was quite out of line with anything we had experienced here before. They were not murderers and thugs and everything else in the classic sense—they were terrorists.

The point I am raising—and why I say it is similar but unrelated—is that potentially the same sort of thing can arise here. I am not saying that visiting forces will be terrorists—they certainly will not be covered by this legislation if they are—but people who have committed minor disciplinary breaches, or minor offences, who end up under military detention in New Zealand, coming alongside people who may be caught for more severe situations. I do not think that is quite what we have been accustomed to dealing with, but it is an issue that arises here in relation to clauses 12 and 14.

I am conscious that the Committee has indulged me a little bit, so I will not go on to comment on clause 13 at this stage. I may come back to that at a later point.

I have to admit that when I was looking at this bill and considering what to say—because I think members are pretty much in agreement with it—it occurred to me, quite mischievously, that when we consider the implications of visiting forces committing crimes in New Zealand, or of New Zealand troops committing crimes in a nation they are visiting, given the frequency of such occurrences, given the distinct lack of such instances—I can recall only a couple of them over the last 30 years—we could be forgiven for considering that maybe the biggest problem visiting forces face is the types of offences that might be committed against them, given our rather pathetic policing situation in this country.

The fact is we are short of police from one end of the country to the other, and a visiting soldier who called for assistance from the New Zealand Police simply may not be able to get the control centre to act on his call, because 60 percent of the units on the controller’s screen are dedicated to traffic policing. Because those units are highway patrol or commercial vehicle investigating units, they refuse to respond to other incidents. Despite the fact they wear a police patch on their shoulders, they are saying: “No, give that traffic accident that that visiting soldier has been involved in to an incident car or to a general duties officer who is investigating a burglary.”

So whilst this part redresses the 1939 Visiting Forces Act, the greatest threat we in this country need to think about is not acts of criminality committed by visiting forces in our nation; it is acts of criminality committed against visiting forces by our own people, because of our own appallingly pathetic and totally unacceptable rising rates of crime, and our inability to deal with that.

There are some issues in this bill that give me cause to wonder. We have had incidents in the past where New Zealand soldiers in Singapore have committed crimes. I recall that when I was in the military a group of soldiers who were caught smoking marijuana fell subject to Singaporean law. It is interesting to note that those soldiers, who were threatened with the rotan, all said in time, as they matured, that that was the one punishment that scared the living bejesus out of them, and they had never considered doing such a thing in Singapore ever again. One might ponder why we have not thought of allowing our troops who break the law in other countries to be subjected to the laws of those other countries, because then they might think twice about breaking the same laws when they come back here.

💬 Hon Peter Dunne: They might not get the chance to break them again.

They might not get the chance to commit that crime again, particularly if it is dealing in drugs in Thailand, for argument’s sake.

The point is that we have, as a result of the agreements and alliances we have, an obligation to look after visiting forces. There are some rather interesting clauses in this bill. Simon Power said it was a rather simple bill, but let us think of the simple little laws we have in New Zealand that do impact on visiting forces, like the right to bear arms. I guess that currently, if we did not have agreements or laws such as this, a soldier who came in from Australia on exercise could be promptly arrested for carrying a rifle. That would not do, because he would look rather silly on exercise without a rifle of his own. The New Zealand soldier who loaned him one from the quartermaster’s store or the armoury might then be charged with improperly, illegally, handing a firearm over to an Australian soldier. All these issues sit behind the scenes and are quite carefully dealt with in this legislation.

The issue that I would like to focus on, and, more so, to ask people to exercise their minds on, is clause 12, which deals with, for example, provisions for compelling the attendance of witnesses, and provisions for protecting judge advocates, counsel, and witnesses. How much easier things might have been today for the New Zealand Police, if they could have placed constraints on visiting students to our shore who were witnesses to a murder. People have subsequently gotten away with a murder, because the visiting witnesses were allowed to go back home to Japan. Despite all the nice “diplomatic-speak” that goes on behind the scenes in respect of the visiting forces, we do not seem to have had any success in getting those witnesses currently in Japan—former visiting foreign students—to come back and give evidence, to help our police force prosecute those accused of the murder of the young Japanese student at Columbus Academy, the English-speaking school in Auckland. It is timely, when we look at the provisions of this bill—at clauses 12, 13, 14, 15, and 16—that we stretch our minds a little bit and ask the Government to start considering the type of legislation that should be coming in for those who do actually commit crimes in this country.

When I was in the military we would have exercises such as Tropic Dawn, when we would go to Fiji, or Captive Lightning, when the Americans came here as part of the ANZUS agreement.

💬 Simon Power: Those were the days.

Those were the days when they would all come up to Waiōuru and we would perform exercises like the Truppenamt exercise. We would have a large number of foreign defence force personnel visiting our shores. In all those times, in which I estimate we would have seen tens of thousands, possibly even hundreds of thousands, of foreign visiting defence force personnel on our shores, the numbers of instances where they had to be charged for breaking New Zealand laws, or even for breaking their own laws—which this bill deals with—were very, very few.

Ironically, I would say it is time for this Government to take a good a look at this legislation and stretch its mind as to how it might deal with visiting foreigners of civilian persuasion who come in and make an absolute mockery of our laws, laugh at us, then get on the next aircraft and shoot off back to their own country, leaving behind them a trail of destruction from the traffic accidents they have caused. Young Asian students have killed in Christchurch’s Port Hills. There have been incidents involving students from Lincoln University, and, most recently, up in Auckland. Those are the issues that I think this Government needs to get its head around when dealing with the Visiting Forces Bill that is before us right now, because I contend that visiting students are a 10-times bigger danger to the New Zealand citizen than any defence force personnel from the United States, Australia, Fiji, or Singapore.

The question was put that the amendments set out on Supplementary Order Paper 212 in the name of the Hon Mark Burton to Part 2 be agreed to.

Amendments agreed to, and Part 2 as amended agreed to.

Part 3 Miscellaneous provisions