Mercenary Activities (Prohibition) Bill

I look forward to this being the first of my three calls on Part 2, because this is the part of the bill where we get to discover, as a Committee of the whole House, the actual, I guess, detailed impact of the disgraceful and sloppy drafting we saw in Part 1 relating to the definition of “mercenary”.

Part 2 contains issues relating to recruitment—which I know my colleague Ron Mark from New Zealand First is very keen to cover in some detail in one of his three calls on this part—as well as the financing of mercenaries. I know my colleague Dr Wayne Mapp is also going to spend extensive time this afternoon working his way through those particular clauses. I also know that my colleague Dr the Hon Lockwood Smith is very keen to walk the Committee through the training of prospective mercenary clauses, and the effect that those clauses will have.

It is clause 13 though, and the issues surrounding jurisdiction, that most interests me. The reason for that is to return to the commentary on the bill by way of a link from the jurisdiction clauses contained in Part 2 and look at just how widely subscribed to this convention, and therefore this legislation, is. My colleague Dr the Hon Lockwood Smith got part-way through taking the Committee through those countries that have ratified this convention. At this stage of the debate, it is worth asking the question that the National and New Zealand First members of the Foreign Affairs, Defence and Trade Committee included in their minority report, and it is this: why would we bring in domestic legislation, which is ill-defined and sloppily drafted, that gets us ahead of those countries that we would normally involve ourselves with at the point of armed conflict or the like, in particular, the US, the UK, and Australia, that have not signed or ratified the convention?

But we can all breathe a sigh of relief because although the US, Australia, and the UK have not signed this particular convention, Costa Rica has. What a great relief it is for the New Zealand public to know that we will be signing up to legislation, which, fortunately for all of us, Uruguay has considered important enough to sign up to! We simply ask this question, and perhaps we could ask the question directly of the Minister: why would we as a country ratify sloppy legislation when the UN itself has said that the definition involved is inoperable, cannot be used, and is unworkable?

So what do we do? Well, the Labour Government might believe that this is political leadership. It also thought that telling the world that we lived in a benign strategic environment was political leadership. Well, it got that one pretty badly wrong. I suggest that we now find ourselves signing up to a particular piece of legislation that no equivalent country to New Zealand has signed up to, and that no country with which we have traditional and historic links has signed up to.

The question for the Minister in the chair is simply this: why would we sign up to and pass domestic legislation for an ill-defined concept of mercenary at the same time that countries like Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, Georgia, Libya, Mali, Togo, and the Ukraine have signed up to it? This is just ridiculous. The Minister sitting in the chair needs to take the opportunity to get on her feet and answer these questions. Why is New Zealand ahead of its traditional friends and allies on this issue?

I have the only answer to Mr Power’s question—which quite clearly the Government does not want to answer. It is that this Government truly does see New Zealand as being part of the Third World, banana republic community.

Look at us! Dr the Hon Lockwood Smith pointed out that this agreement, which we are now legislating into our books, was actually drafted and signed on 4 December 1989, and that one of the signatories to that agreement was Libya. Members should stop and think for a moment. How much credibility does one place on a piece of legislation, outlawing mercenaries, that was signed by Libya, when on 21 December 1988 that country blew an aircraft out of the skies over Lockerbie? Yet here we are—accepting the Libyan signature as some sort of badge of honour and as something we should aspire to represent. I would say: “You are joking; you are seriously joking!” And on 17 April 1984 Police Constable Yvonne Fletcher was shot dead by Libyans. So I am expected to stand here and accept Mr Gadaffi, with his administration, as my guiding light and mentor, and as the architect of this legislation—which I should endorse because he complies? We are not serious, surely! This legislation is a piece of politically correct nonsense. It is unenforceable.

Let us go through clause 7, “Recruiting person to be mercenary”. Does this Government seriously believe that those recruiters who come to New Zealand—looking to recruit former members of the police’s Special Tactics Group to go and work in Iraq—will front up to the Customs Service and say they are here to recruit people “for the purpose of taking part in hostilities in an armed conflict—”? Of course not! Recruiters will say they are here to recruit people to go and do some security work, and if those people happen to be tied up in armed conflict, then so be it. But no one will admit to it; everyone will lie.

But the real tragedy is that the work those members of the New Zealand Police are currently doing in Iraq is dangerous, good work. If we expect the Iraqi people to come out of that horrible mess, which we witness every night on television, then it will be through the hard work and dedication of men and women in uniform, and of other men and women—international citizens—who are prepared to put their lives on the line for the free world and for democracy, and who are paid to do so. I take huge offence at the bunch of trendy-wendy, pathetic liberals who stand in this Chamber and criticise those people, yet who have never once in their entire lives ever—or ever intended to—put on uniforms, picked up rifles, and gone out there to do the very same work that guarantees them the freedom to sit in this Parliament and pass the stupid sorts of nonsensical laws they pass. [Interruption]

Mr Benson-Pope tries to interject, but I challenge him as to why he has never put on a uniform or served his country in a conflict. Mr Nandor Tanczos laughs. He enjoys the freedoms espousing his rather interesting views on life, because the opportunity to do that was given to him with the blood and on the backs of men and women whose names are represented by the battle honours around the walls of this Chamber. I say to Mr Benson-Pope: “Don’t preach to me about wanting to serve New Zealand. Your track record is one of pacifism and peacenik activism.”

That is what this legislation is all about. It is nothing to do with protecting New Zealand’s security interests. It is about politically correct nonsense—something that will make sure Helen Clark is a front contender for Kofi Annan’s job when the position becomes available, because she will be able to go out there to campaign and say: “Look at all the wonderful legislation I passed in New Zealand when I was Prime Minister.” This bill is truly nonsense and rubbish from the Dark Ages. Yes, we want to get rid of the Mike Hoares of the world and there are ways of doing that. I give the Government a clue: it should go and look at what the British Government is doing in respect of regulating the international industry that provides contract officers and personnel.

This bill is called the Mercenary Activities (Prohibition) Bill. Every day in Parliament we commence with a prayer, although that is not so at the moment because we are in urgency and there is a slightly different format to the usual start at 2 o’clock. Part of the prayer includes the phrase: “putting aside all personal interests”—

Dr the Hon Lockwood Smith: Private and personal.

I am sorry: “all private and personal interests,”—and I say to Mr Mark, who has just resumed his seat, that I am sorry we did not have the prayer today. The reason I have stood to speak on this bill is that I have to tell Mr Mark I suspect the speech he has just concluded was so loaded with personal interest it has to have some sort of response made, in order to achieve some sort of balance. This bill is quite simply—

💬 Ron Mark: I raise a point of order, Madam Chairperson. I take that comment as a personal slur on my integrity, and I do not mean to sit here and allow it to go unchecked. I demand an apology from that member now, through you. I have taken deep offence at that; it is outrageous.

The CHAIRPERSON (Ann Hartley): The member has taken personal offence. I think the matter has been debated quite widely, and the member himself has made reference to it. However, the member has taken offence so I ask the member on her feet to withdraw that implication.

I am very happy to withdraw it. I have to say though that I suspect that the speech the member has just given bears very little relevance to what is actually in the bill and a lot more to his personal experience. This bill quite simply states that it is an offence to recruit, use, finance, or train mercenaries, or to participate in a war or act of violence as a mercenary. I was a nurse. I have a great passion for health issues. That member was a mercenary. He has said so himself in this Chamber. He has a great and passionate interest in issues military to do with mercenaries. If he takes offence at that, I have to say there is something wrong with him. I did not do anything as a nurse that I am not proud of. I was proud to be a nurse, and that is why I talk about issues to do with health with great passion and honesty—and no guilt.

I also have to say that this bill focuses on the types of mercenaries who participate in wars and those who participate in concerted acts of violence, including acts designed to destabilise Governments, with the common thread being that the persons involved are motivated primarily by profit. My father, and lots of my father’s generation, went to war, I believe—if there is a right reason to go to war, and I think sometimes there is—with the motivation primarily to achieve peace; they did not go for profit.

New Zealand has long opposed the use of mercenaries. There is nothing new in that, at all. It is part of New Zealand philosophical belief. The involvement of mercenaries—

💬 Stephen Franks: What about von Tempsky?

That is just a bit before my time—as an additional party to a conflict is rarely, if ever, conducive to that conflict’s peaceful resolution.

I remind that member that when he gets up on his high horse—or as someone said this morning: “He is more hack than horse.”—he should remember that some of the things he says are not necessarily objective. This bill is an objective, long-term look at the situation. It is very good legislation, and I ask that member to shuck off his hair shirt for a moment and look at this bill in the way it is intended. It is a good bill.

I have three questions for the Minister in the chair, the Hon Judith Tizard. The first is about clause 7. There is an offence there of recruiting a mercenary, but it does not use the definition of “mercenary”. It seems, therefore, to have none of the benefits of the exceptions in that definition. It seems, for example, that someone who recruits a mercenary to work for the United Nations is still caught by the offence—

💬 Hon Judith Tizard: United Nations!

If the Minister would take a call and answer, that would be great, but if she cares to look at clause 7, she will see it actually does not use the defined term. It restates the offence as recruiting “for the purpose of taking part in hostilities in an armed conflict” for profit, and it seems not to provide for the exceptions that have been provided in clause 5. Clause 5, very importantly, says that someone is not a mercenary if the work is with the United Nations or a peace support mission, humanitarian aid, the detection of unexploded mines, and so forth. Why have we left it an offence to recruit someone to go and explode mines, but it is not an offence to go and explode them?

I do believe that this is another instance of the hopeless work of the Foreign Affairs, Defence and Trade Committee, chaired by Mr Dunne and dominated by the “nutty lefties”, who are so blinded by their hostility to the profession of arms that they do drafting like this. I ask that the Minister seek the advice of her officials, because it seems to me quite anomalous that recruitment is an offence to which the exceptions do not apply. It is quite possible that I have mistaken it, and I would be glad to be told that I have, because otherwise it seems ludicrous.

I am also concerned to have an answer on extraterritorial jurisdiction, to know whether it is possible that under the extradition treaty invoked in Part 3 someone can oblige the New Zealand Government to exercise its extraterritorial jurisdiction for the purpose of actually seizing and delivering someone who otherwise would not be taken. If this country is to be a haven for the sorts of freedom fighters whom in the past we have supported—the kinds of people who have stood up against despots and tyrants—we need to know whether, under this United Nations treaty, someone can force New Zealand to use the authority it is so foolishly asserting over its own people to pursue actions overseas that were not offences at the time or in the area where they occurred. It may be that there is a simple answer to that—I do not know.

Now that I have got out those two questions I will go back to the bill. It is interesting that the offences of training a mercenary, financing a mercenary, and using a mercenary all relate to the defined term—clauses 8, 9, 10, and 12 all refer to the defined term—but not the offence of recruiting a mercenary. I suspect there has to be some explanation for that. It is very odd for it not to be qualified by the defined term. It may be that it was an accident of drafting, or is due to haste. This measure has been brought in under urgency, when it has been sitting around, after being reported back by the select committee, for nearly 6 months. Obviously, urgency has struck. Does someone have to make a speech at the United Nations shortly? Does someone need an excuse to go there and shake hands at a cocktail party? What possible urgency does this bill have? Are we frightened that there might be some New Zealanders about to head off, and we need to head them off?

That would be the third question: why is this bill being dealt with under urgency? Why is it going through these stages under urgency? Is there some rational explanation or is it simply the Labour Government’s version of macho? When one does not believe in the armed forces, one bullies people in Parliament—as the Labour whip attempted to do to Mr Ron Mark.

💬 Dr Wayne Mapp: A special cocktail party.

It would be a very special cocktail party, but the people would be mainly ugly. The member can console himself with that.

As the previous speaker quite accurately indicated, I guess in the next few days we will see a cocktail party hosted by our legation in New York. Those people who will be attending this fine cocktail party—

💬 Simon Power: Will the member be there?

Mr Goff is likely to be there, I suspect. The representatives of Azerbaijan, Surinam, Togo, Turkmenistan—in fact, many of the “-stans”—will also be there. These places are, of course, great bastions of democracy. I have been reading extensively about the cult of personality that is becoming a feature in the “-stans”—

💬 Stephen Franks: They will have to say thank you because we are not going to send our mercenaries to overthrow them.

Yes, indeed. This bill is an example of political correctness. The Minister in the chair took a call on the last part. I carefully noted when she said that the convention would not have applied to Mr Mark because he was in a support role. He was a company commander in an engineering role in the Sultanate of Oman. That is essentially what she said. She implied that he was not in a combat role, and thus would not have been affected. But the reality, as everyone knows, is that the Sultanate of Oman, Saudi Arabia, and many other countries in the Middle East have had a practice of recruiting from the West—actually, in collaboration with the British Government, the French Government, and other Governments—highly qualified specialists many of whom actually do fight directly in the front line, because they are uniquely qualified. It is those people who are now affected. Everyone who follows these issues knows that it is a great concern of highly qualified special forces of Western armed forces that their personnel are being recruited, essentially, by these other countries, often with the support of the foreign affairs departments of Western countries. Surely it is not sensible that the legislation applies to them.

I know that the Government will say it does not apply if a person is a member of the armed forces. The problem—and this is our fundamental dilemma with the bill—is that there is ambiguity or conflict. On the one hand the bill states a person is a mercenary if he or she is recruited, engaged in active hostilities, and paid at a greater rate than other members holding the same rank. but one can hold the same rank only if one is actually in the armed forces. If one were in a private army, then this issue would not apply. So the exclusion—that the bill does not apply to members of the armed forces—is contradicted by the inclusionary words. That is a point that Mr Power raised. There is a tension between who is a mercenary and the set of definitions of who is not a mercenary. The problem is that the two groups of definitions are actually in conflict.

That is precisely why I put forward the amendment in the last part—to ensure that someone recruited into the armed forces of a nation but paid more than the locals could not be deemed to be a mercenary. That is our critical issue. Frankly, the way that the legislation is now drafted, and the way that the Government voted against that amendment, leaves that fundamental issue in doubt. We on this side of the House have been consistently saying there is a very good reason why Britain, the United States, France, Australia, Canada, and Germany—many of which countries supply military specialists to the armed forces of Middle Eastern nations and others—have not signed the convention. Because of the way that the convention is drafted, it affects precisely that activity.

In speaking to Part 2 of the Mercenary Activities (Prohibition) Bill there are a couple of serious matters on which I would appreciate the advice of the Minister in the chair.

Firstly, in Part 2 there are several clauses. The first, clause 7, relates to recruiting a person to be a mercenary, and I guess that is something. But clause 10 makes an offence of training a prospective mercenary. I would like the Minister to advise how on earth that can actually work. If someone in New Zealand is involved in training people for security work, at that stage he or she has no idea whether the trainees will end up in armed hostilities that are defined by this bill as mercenary activities. I would appreciate the Minister’s advice on how on earth that is meant to work. If someone involved in—

💬 Jill Pettis: That’s like saying “I shot him by accident.”

Dr the Hon LOCKWOOD SMITH: That is pretty dumb, and about what I would expect from a Labour whip who is involved in making legislation like this. One has to ask oneself why such junk legislation is being passed by the Government under urgency. The only logical explanation I have heard came from Ron Mark, who reckons that it is to help Helen Clark get the job as Secretary-General of the United Nations. Why else would the New Zealand Government be passing this junk?

But I come back to the specific issue, which is how legislation can contain something like clause 10, which makes it an offence to train a prospective mercenary. People involved in the legitimate business activity in New Zealand of training security forces have no way of knowing whether a trainee will end up involved in mercenary activities. If trainees do end up in mercenary activities, a charge could be brought against the person who trained them, because in training people who are now involved in mercenary activities, he or she has committed an offence. How does that make sense? The person doing the training was doing perfectly legitimate security training.

I am sure Ron Mark could name several such international businesses. Members should not forget that under clause 13, “Extraterritorial jurisdiction”, this training could involve a New Zealander working overseas. If a New Zealander with an international company is involved in training perfectly legitimate people to be involved in security activities internationally—for example, training people to be employed by the United Nations—yet some of those people end up in mercenary activities, then that New Zealander is involved in training people for mercenary activities. As I read this legislation, such people could be charged under clause 10 with training a prospective mercenary.

I believe that Parliament deserves to know where the protections are. It does not make any sense at all to have a perfectly legitimate training business caught up in this legislation; we should not blame that business if a trainee chooses to get involved in mercenary activity. Members should not forget that mercenary activity is extraordinarily difficult to define. We know that from the attempts in Part 1 to define it. Members of Parliament may not be aware, but the select committee heard that the kaiser charged the New Zealand soldiers fighting in World War I with being mercenaries.

💬 Jill Pettis: Well, he would.

Dr the Hon LOCKWOOD SMITH: The Labour member said that he would, but that is part of the problem of defining what is mercenary activity. When it comes to clause 7, mercenary activity has been used to try to bring peace to war-torn parts of this world. I invite the senior Government whip to have a look at what happened in Sierra Leone, because mercenaries were involved there to try to bring some stability to that place. World pressure against mercenaries caused them to be withdrawn, and what happened? The place broke down into civil war. The Secretary-General of the UN himself looked seriously at bringing in mercenaries—clearly defined mercenaries—to try to help with the huge suffering in Rwanda, which none of the members of the UN were prepared to do anything about. None of the members of the UN had been prepared to go into Rwanda or Somalia, and it was going to take mercenary activity to do something. Part 2 is nonsense.

That was an excellent speech, and I really wish the Government would accept that what we are arguing is that the definitions in this legislation make it unenforceable. It is not workable. It is feel-good. We all know what the Government is talking about. We have known about people like Mike Hoare for years. Yet there are ways in which countries can deal with those issues. In passing this legislation, with all the ambiguity that is contained in it, we scoop up into this net men and women who are doing excellent work—men and women whose morals, virtues, and integrity cannot be questioned.

Look at the training. Take, for example, an officer with 20 years’ service in the New Zealand Army, who was decorated for his service in Vietnam on behalf of his country, served with the British defence forces, and became internationally renowned as a specialist officer. He is recruited into a Middle Eastern country that is struggling to contain its internal security and border security problems. He is recruited, along with a number of British personnel, as a contract officer to train, teach, and command the Middle Eastern soldiers, and soldiers who are recruited from other parts of the world. So he goes to Pakistan, Nepal, and India, puts his net out amongst the wider community within those Middle Eastern countries, and recruits people whom he then trains.

The moment they become actively engaged in combat, he is a mercenary. Despite all the good work he is doing to enhance the security of the situation in the Middle East, and to help relationships between his country and the host country—the country that his company has been contracted to support, with the knowledge of the British and New Zealand Governments—suddenly he is a mercenary, and therefore is liable on conviction to face 14 years in jail.

We have to get our heads up and look at the situation. The world has moved on. We know what the Government is talking about when it uses the very stigmatised term, “mercenary”. Those are people who will go out and do despicable acts, who are brought in only by money and greed, who do not care about the ideological causes or about sovereignty, and who go in for one purpose and one purpose alone. They do not care who their masters are; they just want to earn the big money.

My message is that, today, those people are increasingly a very small minority. The vast bulk of the people employed as private defence contractors and security personnel are in legitimate companies that are well known and, indeed, are utilised by Western powers. The problem with this legislation is that it is so ambiguous that it scoops up all those people into the one basket, thereby putting them in a situation whereby they can be prosecuted for the good work they have done because someone has slapped a label on their forehead and deemed them to be horrible, nasty mercenaries of this type.

I ask this Government to reflect on the quality of men and women that it trains, and ask itself seriously whether it believes that suddenly, overnight, those men and women who take private contracts, leave the shores of New Zealand, and go to work for private British companies based out of Hong Kong or the Isle of Man, have suddenly had a brain change. Have they suddenly become nasty, horrible, immoral people who only soldier for money? The truth is that no, they have not. They go out to do something they know they can do to make the world a better place for other people, and they do a jolly good job of it. That is why they are so widely sought after.

We are throwing out a net with this legislation and its poorly defined clauses that will take in all these people. All it needs is for some malicious person to lodge charges, or to lay a complaint, and suddenly we will have people out there who have been doing very good work for the past 5 years—maybe in Iraq, Kosovo, Cambodia, or Sierra Leone—suddenly facing criminal charges and a possible 14-year sentence. It does not matter where I look through this legislation, it is impossible to enforce, easy to circumvent, and so ambiguous that it should not be passed.

The question was put that the following amendment in the name of the Hon Phil Goff to clause 7 be agreed to:

to insert in paragraph (a) of subclause (2), after the words “a party to the”, the word “armed”.