Mercenary Activities (Prohibition) Bill

The core part of our whole concern in relation to this bill is contained in clause 5, which relates to the definition of “mercenary”. As I and other colleagues like Judith Collins have indicated, our concern is the way the definition would attack perfectly legitimate activities—activities that if the Government actually thought about them, it would see it is not in its own or New Zealand’s interest to try to prohibit. In fact, as I suggested in my speech in the second reading, probably our Prime Minister has experienced some advantage from such activities in her visits to Iraq particularly, and perhaps also to Afghanistan. The problem is that clause 5(1) states that a mercenary is defined as any person who is, first, recruited within New Zealand, and, second, whose primary purpose is to take part in hostilities, and, third, who is paid more than persons of a similar rank or functions in the armed forces. I guess it is fundamentally that third part of the definition that is the problem—paid more than combatants of similar rank and functions in the armed forces. That means that the provision then covers people who are members of the host State’s armed forces.

I will use the example of Major Mark, because it is one that people understand. There are many other people whom I have known over the years who have served in various Middle Eastern armies in specialist roles. Many of those people know perfectly well that they will be engaged in hostilities. They are at a time of life when there is a certain sense of adventure, if I could put it that way, so that has its own attractions, and, of course, they get paid more in the host State. But they are nevertheless part of the legitimate army of that nation. In short, they are not a private army. Yet under clause 5 such a person is deemed to be a mercenary. If the Government had thought about it, it surely would not be its intention that that sort of activity be caught. That is the first category.

A second category is the increase in the numbers these days of private contractors. I am aware that clause 5(2) does exempt persons who are involved in domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property. But again, let us be realistic. A lot of those people are doing a little more than policing activities. They are certainly working under the authority of, in the case of Iraq, the occupying powers—both Britain and the United States—but one has only to observe the level of equipment they have to know that they are not conventional police officers. They have experiences that take them well beyond that. Of course, that is the reason they are chosen; they are incredibly highly skilled, in a very dangerous environment. Sometimes they are involved in rescue missions, and so forth. The question becomes whether it is intended that they be caught as well by the Government. Surely that cannot be the case.

For both those reasons, National was opposed to the bill as it came out of the Foreign Affairs, Defence and Trade Committee. If it had been confined to the private armies that have been the scourge of so much post-colonial activity in Africa, we would say yes, the convention had a legitimate goal. But the fact that Britain, Australia, the United States, and Canada have all chosen not to sign it is because they know it catches the very activities that those four Governments and, frankly, many New Zealanders, have been involved in. Thus the bill is badly conceived.

I rise to congratulate Dr Wayne Mapp, a former serving officer in the New Zealand Army, on his insight into this legislation and what it means. I congratulate the National Party and the ACT party also. It seems that only members on the Opposition side of the Chamber understand the realities of maintaining international law and security, and the responsibilities—and sometimes the price—that seem to come with those rather challenging tasks. Is this Government not interesting! It is so concerned and interested in this bill that its members have private little chit-chats all around the Chamber. They do not even take calls, and that is what the country gets as good governance. I am astounded at that.

If members of the Government were to read the bill and pay some attention to it, they might like to consider clause 4, “Interpretation”, and in particular, clause 4(1)(a). [Interruption] Mr Barker may like to call me mercenary, but I was quite—

💬 Hon Rick Barker: I never said that.

Those members were quite happy to have me stand as a candidate for them straight after I came back from Oman. They did not have any problems with that then. They knew full well my military service background, yet they selected me. If those members interject, then they deserve a slap. Mr Hughes should read clause 4(1) and consider this point: a “concerted act of violence means an act of violence designed to (a) overthrow a government or otherwise undermine the constitutional order of a State; or (b) undermine the territorial integrity of a State”.

I ask the Government whether we should stand idly by, and not protect the world from chaps such as Saddam Hussein, Tariq Aziz, and “Chemical Ali” Hassan al-Majid, who appeared on page B1 of the Dominion Post this morning. Are they the sorts of people this Government does not want to see overthrown? The question is this. When the Governments of States decide that it is time to do something, because there is a rogue State—a nation that jeopardises the security of the rest of the world—traditionally, they have used both covert and overt means to achieve that end. New Zealand has sat as a partner in many alliances and accepted that and agreed with it. Let us take the East Timor situation. How many mercenaries were involved behind the scenes in helping East Timorese fighters to fight for their freedom? They were people whom Keith Locke and Matt Robson championed. How many mercenaries were hired behind the scenes to help to overthrow Pol Pot? Those were people whom Keith Locke championed and people whom Matt Robson said he abhorred. How many people would have been hired—or could have been hired—to help to alleviate the situation in Rwanda, because the legitimate States were sitting on their hands, doing nothing? How many clandestine, covert operations have been sanctioned around the world involving the use of contract personnel in order to enhance the security of the greater free world? There have been tens of thousands, and that is the truth.

Members should think of the Congo, and of Afghanistan in the 1980s. Whom did Britain, the United States, and, by implication, the entire British Commonwealth, sanction to go into Afghanistan? I look at the United Future member who will vote for this legislation. Everyone tells me that he or she absolutely detested the Taliban. Who were the people who helped the mujahideen to chuck the Soviet Union out of Afghanistan? For one, there were legitimate defence forces, such as the SAS and the CIA. But a large number of contract personnel were also put in there, and sanctioned and approved with the knowledge of legitimate States such as the United States and the UK.

Just for the sake of clarity, I suggest that the Committee looks carefully at clauses 4 and 5 where the nature of mercenary activities and of mercenaries is defined. For a person to come within the bill and the convention, he or she would need to take part in hostilities in an armed conflict. The focus is on those people actually taking part in hostilities in a combative role. Many of the examples given by Mr Mapp today seem very unlikely to fall within the definition of the bill. For example, the security guards for the Prime Minister would clearly fall outside the definition of a mercenary. Clause 5(3)(d) specifically states that people participating in “domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property” are not mercenaries.

In addition, persons who are providing assistance with reconstruction, and with the training of local armed forces, provided they were not undertaking a combative role, would not be covered. Of course, a person who would be defined as a mercenary also has to be recruited within New Zealand or elsewhere in order to take part in hostilities and armed conflict, has to be taking part in hostilities for private gain, and has to be promised or paid, by or on behalf of a party to the armed conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions. So to work with another armed force if that was in the normal course of, for example, working in Oman, would be perfectly legal and would not be defined as being a mercenary.

There is a lot of nonsense being talked by members of the Opposition. That is their job, but I wish they would stick to the legislation.

I ask the Minister what is wrong with fighting. What is wrong with being paid to fight? What is wrong with being paid more to fight than those of equal rank in the armed forces? The mentality of this legislation shows up the Labour Government members for the “peacenik” lefties they are, stuck in the time warp of the 1970s. A lot of us also marched against the Vietnam War, but we grew up. We got real. We realised that we do not live in a benign environment and that if people want to have peace they should prepare for war. Where will it end? Will we be passing domestic laws that prohibit private security guards—the people we pay to protect our homes and property because this Government has let the police force down so badly that they can no longer do the job that our taxes pay them to do? This legislation will have the effect of downgrading the armed forces.

💬 Hon Judith Tizard: Rubbish!

The Minister says “Rubbish!”. If members look at the definition of a mercenary, they will see that a mercenary is defined as someone who is paid compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party. This is eliminating competition. What incentive is there on any State—take New Zealand—to improve the pay of its armed forces if there is not the risk that they will be lured away by a private contractor who can pay them substantially more? What does the Minister think? Does she think that people should just go to someone like Pol Pot and negotiate? Does she think they should just sit down at a little meeting? What is wrong with someone being recruited to overthrow a Government or undermine the constitutional order of a State when we are dealing with evil like Pol Pot? Does the Labour Party think we should just sit down and have a meeting with them, hold hands, and have a little chat, and send in the peacekeeping forces?

💬 Hon Judith Tizard: Yes, that is what happened with Pol Pot.

I suppose the Minister thinks it is funny that six million people died under that regime—people like that Minister. People were killed just for wearing glasses or being able to read. That is what earned one a death under that regime.

We go on and on ratifying conventions because the leaders of that Government love swanning around the world and being photographed as they sign us up to these international conventions—conventions and treaties that our traditional allies will not go near and will not have a bar of. But New Zealand decides to sign up to them. What happens when we sign up to them? Absolutely nothing! We sign up to international laws and pass our own laws to ratify them, including laws allowing us to prosecute child sex offenders overseas. Since 1999, have we prosecuted one of those people? No. Have we, despite the matter being brought to the Government’s notice, even chased any New Zealand sex offenders who have disappeared overseas, jumped bail, or absconded from charges? No.

💬 Hon Judith Tizard: Yes.

The Minister should read the replies to my parliamentary questions to see what the exact situation is. Nothing has been done. It is all window dressing. The Labour Government thinks that signing up makes New Zealand look good and enables us to get a place in the UN—that talkfest, that huge bureaucracy. It is a shameful situation here. All patriotic New Zealanders who believe in the protection of the State, believe a country has a role to protect its own citizens, and believe what is in their own hearts should have the right, if they see something bad going on in another country, to go there and do something about it, even if they do get material gain from doing so. So what if they get material gain from doing so! What is wrong with that? This is just a disgrace.

I want to return to the issue of Mr Ron Mark—or, as he was, Major Mark—in terms of the definition of “mercenary”. I cannot understand why the Government wants to outlaw someone with Mr Mark’s skills from being able to be recruited through the British Government to go and assist the Sultan of Oman in a military-like capacity. What is wrong with that?

We in the National Party do not want to see private armies around, and clearly, as a centre-right Government, we would not at all condone that. But this legislation goes too far. Dr Mapp has prepared an amendment to this particular provision that would make it plain that Mr Mark’s situation would not be covered by this bill. I ask the Minister in the chair, Judith Tizard, to look at his amendment. It is a sensible one and it would go a long way towards helping this bill make some real sense. Dr Mapp’s amendment proposes to amend clause 5(2) by adding new paragraph (c), which states: “Within the meaning of subsection (1)(a) if he or she is employed directly within the armed forces of a party to the armed conflict whether or not they are paid more than any other persons of similar rank or specialty.” So that says that if a person is part of the army of a particular country—whether it is Oman, Azerbaijan, or whatever—he or she will be protected from this legislation.

We know that this legislation, after many years of sitting where it should be—which is in somebody’s filing cabinet—has come about solely because some New Zealanders have had the courage of their convictions and have acknowledged that because of their specialist skills they can go and work in Iraq to help it in its liberation and rebuilding. They say: “I can do that, and I can make some money. Good on me!”, and they have done that. And that is what this is all about—the Prime Minister has been on television telling those people that they should not do that. Of course, if they are actually going to be earning money, they do not want to have it all taken off them by the dreadful tax rates we have here. [Interruption] That is what this is all about.

Tomorrow I will visit our SAS troops, who will be thrilled to know what this Government thinks of them—

💬 Dr Wayne Mapp: Because many of them want to do a job.

Exactly. Many of those SAS troops would like to know that, at some stage, they can go off with their specialist skills and assist in this way. There are not very many jobs out there for people who happen to have certain specialist skills in this area. There are not an awful lot of those jobs in the legitimate workforce in New Zealand. The fact is that we say to those people at age 50, 55, or whatever that we do not really value their skills any more, and I think that those people are, as specialists, entitled to use their skills to train others and to be involved in places where they are needed—and good on them.

We should be proud of the fact that they have skills and that they are sought after. We are not talking about private armies. We are not talking about people who go into other countries and rape and pillage and kill indiscriminately; we are talking about the people—and Mr Mark is representative of them—who use their skills, particularly in a legitimate way, and are rightly proud of their service, and I say good on Mr Mark for doing so.

This Government is not only soft on crime, it is soft on defence. It is tying us up with little-known countries, most of which did not exist 20 years ago. We are being aligned with them. We no longer have allies. We have some friends. What we are doing now is aligning ourselves with countries that, by and large, are not ones we would ever want to be aligned with in a crisis. We would never want to have to stand up and say: “OK, New Zealand, armies are coming to attack us, but don’t worry, we have Azerbaijan coming to help us.”

I move, That the question be now put.

First, I want to give a bouquet to the Minister in the chair, Judith Tizard, because she has taken a call and attempted to answer some of the questions put to her, which is a little unusual in the Committee of the whole House, and I appreciate that.

I have again gone through article 1 of the Convention against the Recruitment, Use, Financing and Training of Mercenaries, on which the definition is based. I can deal with this blow-by-blow. Article 1.1(a) provides that a mercenary is a person who: “Is specially recruited locally or abroad in order to fight in an armed conflict;”—

💬 Hon Judith Tizard: And read on.

I will come to each one, in turn. I note with interest that countries that have signed up to this convention, such as Qatar, Saudi Arabia, Italy, and Libya, are countries that have employed, and still do employ, mercenaries.

A good friend of mine was second in command of a Baluchistani mercenary battalion on the border of Oman, and opposing him across that border were Pakistani mercenaries—in Saudi Arabia. So straight away I would question the commitment of one of the signatories to the convention—a convention that New Zealand has signed up to. As for Qatar and Libya, well, everybody knows that Libya not only employs mercenaries but also dispatches them. It is an absolute nonsense.

How does one get around this provision that refers to people who are “specially recruited locally in order to fight in an armed conflict”? It is by getting recruited into a command appointment where one does not have to physically, personally, fight; rather, one commands a battalion and simply issues the orders and instructions. In a court of law I could argue that I was not there fighting; I was simply administering resources. That is my argument.

When I was in the Middle East, one of my jobs was to go to India and Pakistan to specifically recruit former defence force personnel from those countries to take them back to the Middle East. I was looking for people with specific trades and technical skills, but alongside me were my colleagues who were going to recruit people like Gurkhas. We needed Gurkhas in our unit to provide specialist security tasks that were mainly oriented towards looking after us, just in case things got very awkward with our local Arab friends. That was one of the things one had to do.

Those people were employed on a normal day-to-day basis. They did base security and personal security, and they never ever had to engage in combat. But they were there to do so should they be called upon.

Sitting suspended from 1 p.m. to 2 p.m.

Before we lifted for lunch I was referring to the definition of “mercenary”, which is based on article 1 of the convention, and particularly article 1.1(a).

I now move to article 1.1(b), which provides that a mercenary: “Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;”. The reality is that even an Indian soldier recruited to serve in the Omani army would be paid more than many of the people alongside him.

💬 Stephen Franks: Especially if they are conscripts.

Yes, especially if they are conscripts. The idea and notion that a professional officer of the New Zealand Army or Air Force, or the British army or air force, would go all the way over to Saudi Arabia, Oman, or Iraq to help rebuild a nation and do it for nothing, or for the same wages that the locals would be paid, is a nonsense. The very reason that person would be asked to accept a contract to go over there to work for those armies is that person has professional skills of a very high standard that those armies want, and they know that they have to pay to get the skills. The men or women are setting themselves up to leave their homes, families, and children back here in New Zealand, and they will not do that for peanuts. To make them mercenaries by this definition is wrong, and it is not helpful. At the end of the day, other ways exist to deal with those unsavoury characters of the ilk that the Government is quite legitimately trying to deal with. The ways around this also exist.

I go to article 1.1(c), which provides that a mercenary: “Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;”. Can anyone answer me this question? Of all those expatriates who went into Afghanistan to fight the Soviets and help the mujahideen—because it was a sensible thing to do in those days—none of them were nationals of parties to the conflict, but they did us a service.

Part 1 raises very quickly the heart of the opposition to this Mercenary Activities (Prohibition) Bill. Nobody on this side of the Chamber wishes to condone mercenary activity in any way, shape, or form, but this bill creates a whole lot of uncertainty around the definition of mercenary. During the second reading I said that the most extraordinary thing about the way this legislation has been put together is that when members look at clause 5, where mercenary is defined, they will see that the definition of what is not a mercenary is larger than the definition of what is.

💬 Hon Judith Tizard: Why is that surprising?

It is surprising because it is very bad law when the definition of mercenary is unable to capture the essence of the legislation in a way that secures certainty for those interpreting it. I say to the Minister that it matters because the only way this legislation can be clarified is to include an extensive definition of what is not a mercenary. If that principle were applied to all the interpretation sections of all the bills that went through Parliament, one can imagine the chaos that would ensue in interpreting law. It is not good enough to have a definition at the crux of the legislation that has to be corrected and clarified by defining further on in the interpretation section what a mercenary is not.

For example, if we were to use a parallel piece of legislation around—to pluck a subject out of the air—Auckland roading, we would then find ourselves, on this principle, defining what is not a road, instead of what is a road, to make sure the definition of a road is clear. That is an entirely unsatisfactory way for this House to pass legislation. It is evidence of the fact that, in the end, the Foreign Affairs, Defence and Trade Committee and the Government were unsure about the meaning of mercenary and how to define the concept of a mercenary, and were convinced, I believe, by the number of concerns that were raised during the select committee process that their definition of mercenary as presented was nowhere near good enough.

The only way to fix that, obviously—using the collective wisdom of the select committee, the Government, and the officials—was to tell the world what a mercenary is not. That is wholly unsatisfactory when it comes to interpreting law, wholly unsatisfactory when it comes to applying law, and wholly unsatisfactory if one happens to be a mercenary. Mercenaries now find themselves in a position whereby not only do they have to not satisfy one test, but they have to also satisfy the other test to ensure they are not captured by this legislation.

This is sloppy legislation. This is a sloppy definition, and we on this side of the Chamber say that the Government should do a better job of defining what evil or wrongdoing it wishes to capture, as opposed simply to defining what it is not, in order to capture that perceived wrongdoing.

The UN itself has had difficulty with this concept. It has had a series of reports presented to it that state: “This is really hard, and we don’t know how to define what a mercenary is. We accept that the current arrangements are unsatisfactory.” So how does the New Zealand Parliament resolve that? It says: “It’s all a bit tricky, so we will say what a mercenary is not.” That is totally unacceptable.

Debate interrupted.