Mercenary Activities (Prohibition) Bill

I move, That the question be now put.

This Mercenary Activities (Prohibition) Bill, and, in particular, Part 1 that we are speaking to now, is really important, and should not be treated lightly by this Parliament.

There are a number of things that trouble me about Part 1. The first is that clause 3, “Purpose”, does not tell Parliament or New Zealand when the mercenaries convention was concluded or drawn up. It states: “The purpose of this Act is to implement in New Zealand law New Zealand’s obligations under the Mercenaries Convention.” I think it is relevant to New Zealanders to ask: is this a convention that was drawn up in 2003—last year? I do not think it is, is it? Is it a convention that was drawn up in 2000? Was it drawn up in 1999, perhaps? That would make it 5 years old. Maybe if it were 10 years old it might still be relevant, but if it were 10 years old, that would mean it had been drawn up in 1994. But I do not think it was drawn up then. I think it was drawn up in 1989, if I remember rightly.

The question that has to be asked of this Labour Government is: what on earth has suddenly provoked it to implement a convention drawn up in 1989 that none of our allies and partners has actually implemented? That was 15 years ago.

💬 Simon Power: I was in my second year at university then.

Dr the Hon LOCKWOOD SMITH: My good colleague Simon Power tells me he was in his second year at university in 1989. In 1989 Dr Cullen had the chance to implement it. He was the Deputy Minister of Finance in the then Labour Government.

💬 Hon Dr Michael Cullen: I was not. Wrong again.

Dr the Hon LOCKWOOD SMITH: He was.

💬 Hon Dr Michael Cullen: I was the Minister of Social Welfare in 1989.

Dr the Hon LOCKWOOD SMITH: It was probably 1990; I beg the member’s pardon. He was a senior member of the Labour Government that could, if it wanted, have implemented this in 1989 or 1990. What has happened 15 years later that has suddenly provoked the Labour Government to implement this, when clearly it is tricky legislation? Members should look at the countries that have actually implemented it: Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, Croatia, and the list goes on.

I do not want to spend too much time on that because there is some important detail here that we need the Minister in the chair, Judith Tizard, to answer, and I realise we may not get many more calls. What I would like the Minister to respond to is this. The Foreign Affairs, Defence and Trade Committee put a lot of time into looking at the definition in clause 5. We heard from respected academics in this field of international law who advised us on the definition and on how the UN saw the definition, and as to what other countries are trying to do about this issue. At the final analysis, when the select committee was considering this legislation, I asked the expert advisers to the select committee whether the definition would enable people who had not sworn an oath of allegiance to the country for whom they were involved in hostilities to be defined as a mercenary.

This is an important issue, and I would like the Minister in the chair to advise the Committee on it. Even with the changes made at the select committee to the definition of a mercenary, is it correct, the way the definition now remains, that if a person in the employ of a country—a sovereign nation—to assist in resolving hostilities in that nation has not sworn an oath of allegiance to that nation, that person would be caught up in this definition of a mercenary? I can tell the Minister that on 25 March this year, which is the date of the last notes I have from the select committee on this very issue—clause 5, the definition of a mercenary—I asked specifically what would be required to make it quite clear that someone is employed to be involved in hostilities, as distinct from someone who is an automatic part of the armed forces of a sovereign nation involved in hostilities. The answer I got was that the person really would have to have sworn an oath of allegiance.

There have been cases in history—in fact, we were advised that even the Secretary-General of the United Nations, Kofi Annan, considered sending mercenaries to deal with the disaster in Rwanda. This definition is hugely important and we deserve an answer from the Minister.

I move, That the question be now put.

I look at the definitions in Part 1 with some curiosity. Having started my political career from the left, we had a number of heroes. We believed that the people who went off with the International Brigade to fight Franco in Spain were heroes. Later I learned about the Flying Tigers, who were the only help for the Chinese against the Japanese. I could name many others who had an honourable tradition, an honourable career, as mercenaries—right back to our Scottish forebears who fought for most of the kings in the Hundred Years War and the Thirty Years War in Europe.

But now that we are in the Committee stage, I look at this as a technical matter. The definition seems to say that it will be OK for New Zealanders to fight in rich countries’ wars but not in poor countries’ wars. If they are in a rich country’s war, the amounts they will receive, and be happy to receive, might be less than those received by the locals. It seems to say that it will be all right for Fijians to go, because they will take small amounts of pay, but not for New Zealanders. It seems to say that the status quo can be preserved, but not those who oppose a barbaric or dictatorial status quo. Curiously enough, if a party that is fighting does not have any combatants and makes all its combatants mercenaries, then that too seems to be OK, because there will be no one else to be adversely compared with. This is a piece of legal nonsense as far as I can tell. The compensation test seems to me to be made for avoidance, and made to suit the interests of those who are in power—the establishment—wherever this might be applied.

Has the Minister considered whether there is a distinction between private gain and collective gain? For example, it seems to me quite possible that we could make sure that payment goes out collectively and avoid the intended purpose of this provision, if mercenaries are worried about what New Zealand is going to do to them. How will this Government distinguish the situation of the pilots and the engineers who go off to help a group like the Flying Tigers the next time such a group is needed somewhere in the world to protect desperate people from a barbaric enemy? Will they have to rely on the Attorney-General, trying to commit in advance, saying that they will not be prosecuted? What about when it is the Government’s own interests—as indeed President Roosevelt had in having the Flying Tigers operating in support of the Chinese, who otherwise would have been left facing a barbaric invasion by the Japanese completely without international support? Why would a Government pass something like this bill in advance when it has absolutely no idea to whom it might apply and whether it will serve its interests?

When I look at these definitions, I see that they are badly drafted. I had a look to see which lawyers might have been responsible, and I see that our committee membership seems to have been dominated by that worthy Peter Dunne, with the assistance of Tim Barnett, Keith Locke, Martin Gallagher, and the Hon Matt Robson—international statesmen all of them, and all of them with great knowledge of how despotism has been beaten back in the past! We need an explanation from the Minister in the chair as to why those people would have decided to assist Helen Clark’s retirement plans.

What possible reason is there for subjecting ourselves to a United Nations obligation like this, when in the Pacific we have no idea of what we may need to support ourselves over the next 5 or 10 years? It may well be that it is in New Zealand’s interests to ensure that there is mercenary support if we do not want to have open conflict with whoever is supporting the other side in our backyard. If, for example, we fear that Indonesia is causing trouble somewhere and we do not want to take them on directly, of course we will want mercenaries to be in there making sure it is not a walkover. Yet for the sake of her retirement job with the United Nations, we sign up to this kind of tripe.

I say to the Minister that we need an explanation of what lies behind bad drafting, and behind definitions that are so palpably oriented to support the status quo. I would like to hear from a politician why the left, which used to stand up for people in trouble, now wants to help the enemy.

I move, That the question be now put.