Mercenary Activities (Prohibition) Bill

I do wish to take a short call on Part 3, because there is a consistent thread running through this legislation of abysmal drafting and of ambiguity over interpretation. It is worth saying that not only do we have this continued debacle with the definition of mercenary and the non-definition of mercenary but under Part 3 we have what I have to say is one of the most hilarious clauses I have read in my time in this Parliament—short though it has been. That clause is clause 14, relating to the “Certificate as to States Parties under Mercenaries Convention”. It is worth reading that, because it provides good humour after a day and a half in the Chamber under urgency. For listeners, it is worth getting a sense of the complete waste of time that legislation like this is, when this clause is read through slowly. So, here goes: “A certificate that appears to be signed by,”—I do not know what that means—“or on behalf of, the Secretary of Foreign Affairs and Trade and that states that a State is, or is not, a State Party to the Mercenaries Convention is sufficient evidence of that matter, unless the contrary is proved.” Now, that is just a shambles. What kind of legislative debacle—

💬 Opposition Member: A junk clause.

—and junk clause, as my colleague calls it, is that? “A certificate that appears to be signed by,”; so it might not be signed, but it might appear to be signed. In other words—

💬 Lindsay Tisch: The Prime Minister is good at this sort of thing.

That is right. It could be that the Secretary of Foreign Affairs and Trade decided to put a pen to paper, but changed his mind. So it may well be that we have an ink dot on the signature line, which is not a completed signature but the paper may appear to be signed. It could well be that the Secretary of Foreign Affairs and Trade changed his mind halfway through his signature, or accordingly signed on behalf of someone else—something that members opposite will know a fair bit about.

It strikes me that that is a bizarre way to describe the execution of a certificate. It is pretty straightforward: the certificate has either been signed or it has not been signed. It is like the words: this is a definition of a mercenary, and this is the definition of somebody who is not a mercenary. So why does the clause simply not say: “a certificate that is signed by the Secretary of Foreign Affairs and Trade”, instead of saying “appears to be signed by,”? What a load of nonsense!

Then it goes on to state that “a State is, or is not,”. So now we have a certificate that appears to be signed by somebody, and that could mean a State is, or is not, a party to the convention. It goes on to say that if it appears to be signed, and is or is not a member State of the convention—

💬 Ron Mark: On behalf of.

—on behalf of—then that is sufficient evidence. That is just ludicrous. But there is more. The clause goes on to say that all of that means there is sufficient evidence of the certificate—unless the contrary is proved. Well, does that mean: “No, it does not appear to be signed, because I am going to prove that it was not, despite the fact it could be signed, there being sufficient evidence of the fact that somebody else, signing on behalf, could have signed to say the State is, or is not, a member of the convention, on behalf of somebody.”? Now, if that is the type of legislation that is running through this Parliament, together with phraseology like: “This is not what a mercenary is but the legislation is designed to capture a mercenary—which we cannot define—so we will tell people what it is not.”, as well as certificates that are not signed, or purport to be signed—

💬 Ron Mark: On behalf of.

—on behalf of somebody else, is sufficient evidence, unless one can say it is not sufficient evidence, in which case, whether it is signed on behalf of, or not, means the certificate could, or could not, be complete, depending on whether, or not, it appears to be signed by somebody.

💬 Ron Mark: Unless the contrary is proven.

That clears it up, beautifully! So if I want to travel overseas and become a mercenary, I now know my rights—completely! [Interruption] That is true; compared with the Associate Minister of Transport, I should do a far better job as a mercenary. The one thing we do know about this legislation is that it is sloppy and ambiguous. That is no way to determine whether, or not, mercenaries are indeed mercenaries, depending on whether certificates have been signed as being sufficient evidence on behalf of others, whether, or not, the contrary intention is proved, depending on whether, or not, the certificate purports to say that a State is, or is not, a State party to the Mercenaries Convention.

To be fair, this is an absolute shambles. For the Government to pursue legislation that is indeed so messy, so untidy, and so ambiguous is—to be blunt—hopeless, when in fact it is the Government’s responsibility to produce clear, unambiguous legislation to cover these types of issues, and it has not been able to do that in this case. And this clause proves that beyond reasonable doubt. I see that the Minister in the chair, Harry Duynhoven, is very keen to engage on this issue—

💬 Hon Harry Duynhoven: No, no. I just want to ask: is this member a lawyer?

Is this a call?

💬 Hon Harry Duynhoven: If the member will yield.

I am happy to yield to the Minister so that we can continue to debate Part 3 once he takes the call.

The CHAIRPERSON (H V Ross Robertson): Can I just say that if the member yields, the Minister can reply only to the questions asked, and that is it. It is not a means of transferring a call.

I am very happy to yield to the Minister, should he wish to answer the question. I am happy to transfer the call.

The CHAIRPERSON (H V Ross Robertson): Yielding is not a means of transferring a call. The Minister can only answer questions; that is it.

Well, I will just carry on. Therefore, I think it is very clear to the House that the Government has failed on two counts with this legislation.

💬 Jill Pettis: Just two?

Well, there are more, but we will stick at two at the moment, I tell the senior whip. The first is that the Government has been unable to define what a mercenary is. The second is that it leaves the entire world, not only New Zealand, uncertain as to what the “certificate that appears to be signed” actually means.

One has to laugh, does one not, to read such a clause. I tell Mr Power that I tried to read that same clause three or four times, and I think his point is well made. I do not, for the life of me, understand why the Minister is not now scratching out an amendment to that, with the assistance of his staff, because it is an absolute nonsense and it is no wonder that lawyers make so much money out there when this Parliament produces paragraphs such as that.

I want to come now to clauses 15, 16, and 17. It is interesting that under the heading, “Investigation and prosecution of offences against Act or referred to in Mercenaries Convention”, clause 15(1) states: “Sections 16 and 17 apply whenever the Attorney-General receives information that there may be present in New Zealand a person who has committed, or is alleged to have committed, an offence against article 2, article 3, or article 4 of the Mercenaries Convention.” Then we get into a whole series of questions that I guess have to be asked, and I am going to ask them of the Minister right now.

The first is: what happens when the Attorney-General is told that there is a person in New Zealand who is recruiting people who someone believes will be mercenaries—and, therefore, he is a mercenary—what is to be done? Do we go and knock on the hotel door of the said chap, who might be from the United Kingdom or the United States, or who might well be here at the behest of the CIA or of any of Britain’s intelligence agencies, looking to recruit good, competent, highly professional New Zealanders with good moral values and ethics, to go and—say, for example—chuck the Soviets out of Afghanistan after their having invaded Afghanistan?

Will the Attorney-General of New Zealand bring to the courts in this land an American or a British officer, or a person operating or working on behalf of the British or American Governments? When the New Zealanders who have been, say, in Iraq doing the work that they are alleged to have been doing are found, what will we say? “The State where the offence was committed was Iraq.” Oh, OK. “The State in relation to where the offence was directed or attempted was Iraq.” OK. “The State in relation to which any person against whom the offence was directed or attempted is a person of the kind referred to in article 10 blah blah of the Mercenaries Convention, who was Saddam Hussein.” Oh, OK. So we will prosecute that person for overthrowing Saddam Hussein. What is worse is we will prosecute that person for working with legitimate Government agencies as a private contract officer to overthrow some other tinpot dictator in a country that he or she has invaded or taken control of.

Will the New Zealand Attorney-General seriously go head-to-head with intelligence agencies of allies who are seeking to make the world a better place through using New Zealanders of good moral and ethical values who have served 25 or 30 years in the New Zealand Army and are veterans of Sierra Leone, Cambodia, and East Timor? Will we seriously throw those people up in the courts, prosecute them under these clauses, and slap them in jail for 14 years? What will be the reaction of the average Joe Blow on the street to that? I suggest that the average New Zealander would say that it is ridiculous and absurd. It is unworkable and there is the potential in the bill for a diplomatic row or argument we do not ever want to have, particularly if on the same weekend the Prime Minister is over there trying to negotiate a free-trade agreement, I suggest.

What would then happen to any of the allegations in this spurious, ambiguous legislation—which might even have been maliciously brought—when this Government engaged in another round of free-trade discussions with the United States? Well, I will tell members what would happen. They would be thrown out—or would they? Would this Government and Attorney-General seek to make an international political row over such an issue, and accept the consequences of that? Now, I am waiting to hear the answer, because the procedures that are laid out here raise—to me—the potential for a huge diplomatic problem. So we will arrest some of the people who come here looking for good, professional, honest officers and NCOs of integrity to go into places like Iraq to try to rebuild it.

Will we tell police officers with exemplary service records that if a charge is laid against them because they have been actively engaged in combat actions whilst being paid more than local people and not being a national or a citizen of Iraq, the moment someone lays a charge back here—despite the fact that those officers might well have been recruited by a British company at the behest of the British Government—we will now charge them and all the people involved? I do not think so. I think this is rubbish.

I was very sorry that in the debate on the last part the Minister chose not to answer the serious question I had raised as to the definition, and in this part the question is material again. That is because I am not confident—and I do not have the background in this area of law, but I am sure the officials available to the Minister do—that New Zealand is not setting itself up in clauses 15, 16, 17, and 18 to be deeply embarrassed. Members will recall the embarrassment for the British Government when General Pinochet was detained essentially at the request of, as I recall, a Spanish court at the instigation of activists in Spain, and the last thing the British Government wanted was to be in head-on conflict with any of the factions in Chile. But in the end, the British Government had enough international clout to do as it thought best for Britain, and the British courts have enough reputation for being independent that—after Lord Hoffman was removed from the House of Lords bench—it was very hard to suggest that anything other than the most honest view of the law was being applied.

But what if a similar circumstance were translated to New Zealand? For example, what if the Chinese made a request to us if it is a party—and I am not sure China is a party, but I will assume it is—to hold someone here who it claims has been a mercenary in Tibet, or it claims is recruiting or raising finance to cause trouble for China in Tibet? How would that go with New Zealand? Why would we want to put ourselves into a position where there is an instrument that gives the other State the expectation that it can call on us to chase the people it does not like? What about the Russians in relation toChechnya, the Indonesians in relation to Timor or Aceh, or the Kanaks in New Caledonia? There are any number of people whom we have relationships with—for example, the French Government—who might one day call on us to exercise powers under this legislation that we would much prefer not to have.

I have not heard or seen any justification for this. The Foreign Affairs, Defence and Trade Committee’s feeble report does not tell members how it weighed those kinds of considerations—if indeed it did. There is absolutely no consideration from the perspective of New Zealand’s interests, as opposed to some abstract interest of the international community, so who is looking after New Zealand in relation to clauses 15, 16, 17, and 18?

Then I saw that clause 21 means that this legislation is included for the purposes of the Extradition Act of 1999. Now, I do not know whether that is a benefit—I come to this as any ordinary member reading these words for the first time—but I would have expected to be told, and I believe that the Minister ought to tell members, whether this does mean that China could call for the extradition of some poor soul who has offended it in Tibet or in relation to Tibet. So I do not think we should be voting for this. I despise the Greens, and I despise them deeply in matters like this. Those members are very, very prone to self-righteous speeches in this Chamber about looking after the benighted and those whom most Western World States consider to be terrorists. But when it comes to a bill in this Parliament that could be used to suppress freedom fighters or to harass people whose politics are unpopular with the Greens’ mates, the communists—no; they are in there, boots and all, supporting it.

I reckon members will see them vote for this thing unamended. They will vote for Part 3, because Part 3 is the bit they want. They want to be able to hand over people to ensure that the Governments they favour can claim the right to deliver up those who might offend them, wherever they may hide. We may find it could be as embarrassing as somebody’s bodyguard coming with a foreign dignitary to New Zealand, who is suddenly hit with a request that he or she be intercepted, arrested, and suffer the fate of General Pinochet. Whatever one may think of him, it was a grave misuse of power to have arrested that man, who had come to Britain for medical treatment, for acts that were not illegal at the time he committed them in his own country and for which he had an exemption. To turn the law into an instrument of foreign policy like this, when it could rebound on a weaker country that has got itself offside with the international community, is stupid.