Visiting Forces Bill

on behalf of the Minister of Defence: I move, That the Visiting Forces Bill be now read a third time. This is an important bill that deals with a complex area of international relations and law. In repealing and replacing the Visiting Forces Act 1939 it will rectify the deficiencies in the present law that are only to be expected in legislation that is over six decades old. It will update and amend the law relating to armed forces visiting New Zealand to reflect established international practice. By providing a clearer and more comprehensive legislative basis for accepting visiting armed forces into New Zealand, it will contribute to the enhancement of New Zealand’s international defence and security relationships. It will minimise the possibility of future difficulties in New Zealand’s relationship with States sending forces to this country, by reducing the prospect of misunderstanding surrounding the status, rights, and obligations of forces visiting New Zealand. Most important, it will permit New Zealand to ratify its status of forces agreement with Australia.

Given the complexity of the bill’s subject matter, it is a product of lengthy policy development process and broad consultation. It received careful consideration by the Foreign Affairs, Defence and Trade Committee after it had been referred to that committee last November. The committee’s unanimous recommendations for amendment—it accepted the only public submission, which was that of the Law Society—are reflected in the bill, which I am pleased to observe all parties in this House agreed to on the second reading.

In addition to the advantages I have already mentioned, and as my colleague Mark Burton said on introducing this bill, it is also important for reasons of international reciprocity. New Zealand expects its deployed forces to be afforded the privileges and immunities from local jurisdiction that visiting forces customarily have under international law. Those are among the matters dealt with in the status of forces agreements negotiated with the States to which the New Zealand Defence Force deploys, and with which this country has defence relations. Negotiation of such agreements will be made less difficult by New Zealand’s law allowing for similar privileges and immunities for the forces of such States when they visit New Zealand. In bringing law that has been in place since the outbreak of World War II into line with contemporary international law and practice, this bill will enhance New Zealand’s capacity to act as a valued member of the international community. It will underpin the next stage in New Zealand’s closer defence relations with Australia—the ratification of our status of forces agreement.

I would like to thank the Foreign Affairs, Defence and Trade Committee for the careful consideration it gave to the bill. I would also like to thank the Parliamentary Counsel Office and the New Zealand Defence Force for the excellent work they have done on the development of this bill. Those officials did an excellent job of updating the existing deficient legislation in line with developments in international law. I commend the Visiting Forces Bill to the House.

I must say that the National Party supports this Visiting Forces Bill, and is pleased to support its third reading.

It is about time this Labour Government got off its butt and put this legislation through the House, because it has a long history. One of the reasons the legislation is needed is that the old Visiting Forces Act of 1939 does not provide for status of forces agreements. Back in 1998 the previous, National-led Government negotiated a status of forces agreement with Australia. That agreement is very important. There is quite an exchange, obviously, of military personnel between Australia and New Zealand, and we often have Australian servicemen and servicewomen here in New Zealand, so the previous National Government negotiated a modern, up-to-date status of forces agreement. The problem is that this Labour Government did nothing to pass the legislation needed to ratify that agreement. In 1998 we negotiated a status of forces agreement with Australia—our most important ally, the people with whom we most frequently exchange military servicemen and servicewomen—but we had no way of ratifying it. It has taken Labour 5 years—almost 6 years—to get off its backside and pass this legislation.

One of the problems caused by Labour’s inaction over the legislation is that it conveys to Australia, our most important friend and ally, the people we work most closely with on military matters, the feeling that New Zealand does not give much priority to defence and military issues. If our defence relationship with Australia mattered to this Labour Government, surely it would have drafted this legislation, which enables ratification of the status of forces agreement, and passed it through Parliament in less than 5 years. That it did not is an indictment on this Labour Government, and it adds further damage to the already somewhat tarnished relationship that this Labour Government has developed with our important friends and allies. The problem in our relationship with the United States of America is almost legendary now. The problem in our relationship with Australia is perhaps less well known, although it did surface during a recent conference in New Zealand, when the Australian Foreign Minister made some comments that were quite polite and diplomatic but did reveal that there are problems in our relationship. The lack of priority that Labour has given to advancing this legislation just confirms the impression that Australia has, and that is bad for New Zealand. It shows the low priority that the Labour Government attaches to defence matters and to the vitally important issues surrounding our relationship with Australia. All I can say now is thank goodness that, finally, the Government got off its backside and had this legislation drafted and introduced into the House. It has passed through the select committee process, and now is in its third reading. The National Opposition certainly will not be holding it up, because it is needed to ratify that status of forces agreement.

One of the slightly interesting issues around this legislation—and the Foreign Affairs, Defence and Trade Committee did quite good work on this—relates to jurisdictional boundaries when we have visiting forces in New Zealand. Following the work of the select committee, a reasonable solution has been developed in the legislation. Essentially, where a status of forces agreement exists, that resolves the issues of jurisdiction and where primary jurisdiction lies. But what this legislation must also provide for, of course, is situations where we have in New Zealand servicemen and servicewomen visiting from foreign countries with which we do not have a status of forces agreement. What the legislation sets out to do—and it is clause 8, particularly, which covers this—is to state that where an offence is believed to have taken place that involves the property or persons of the visiting force, or involves members of the visiting force carrying out their duties within the range of activity of that visiting force, then the primary jurisdiction lies with the sending nation. That makes sense—that where an offence does not involve New Zealand citizens or New Zealand - owned property, then the matter can be dealt with by the sending nation. Clause 8 as amended makes that clear, and clause 15 as amended makes clear that New Zealand courts cannot then get involved and second-guess the work of the sending State in resolving the issue.

But a slight complexity enters in terms of how the New Zealand Bill of Rights Act appears to affect this issue of jurisdictional boundary. Clause 18 is inserted in the bill to try to clarify the application of the New Zealand Bill of Rights Act. In fact, clause 18(2) states: “This section is for the avoidance of doubt.” So clause 18 was inserted to try to clarify the situation in respect of the New Zealand Bill of Rights Act. All I can say is that if one reads clause 18(1) one finds it is not exactly clear: “The New Zealand Bill of Rights Act 1990 applies to acts done in New Zealand at the request or on behalf of a visiting force by a person to whom or body to which section 3 of that Act applies.”—meaning the New Zealand Bill of Rights Act. That is a very clumsy construction in my view, given that the clause was inserted to try to avoid doubt. It is not very clear what it means.

If we then go back to the commentary from the select committee to try to make sure we understand exactly what the clause means, we read: “Finally, we note that the New Zealand Bill of Rights Act does not apply to the acts of visiting forces. However, if the visiting force’s jurisdiction is exercised over, or assisted by, a person or body to whom section 3 of that Act applies (ie not a member of the visiting force), then the New Zealand courts would have jurisdiction in respect of that exercise or assistance.” The select committee’s interpretation of the issue of the application of the New Zealand Bill of Rights Act, as clarified by clause 18, appears to be that the New Zealand Bill of Rights Act may actually be involved in respect of whether New Zealand courts are to exercise primary jurisdiction. That appears to be what the commentary is saying. It seems to me a little complex, because although clause 8 sets out the primary jurisdictional issues it does not mention the New Zealand Bill of Rights Act. It is mentioned in clause 18, and clause 18 appears to add a dimension to clause 8 in respect of the boundaries of primary jurisdiction.

Sadly, I do not think I was here when the bill went through its Committee stage. It would have been good to have the chance to question the Minister of Defence more closely over the interrelation of those two clauses, and exactly whether the New Zealand Bill of Rights Act of itself has impact on the jurisdictional boundaries. That appears to be the case, from what the select committee has said.

All I can say is that, essentially, the bill sets out the issue of jurisdictional boundaries—who is responsible for prosecuting offences when we have visiting forces in New Zealand. The only element that, to me, is perhaps not quite as clear as it might be—despite the efforts to make it clear—is the application of the New Zealand Bill of Rights Act. Given that that was why clause 18 was inserted in the bill, it is a wee bit of a shame that the construction of the language is so clumsy as to leave it not as clear as it might be, in my mind. And it is such an important issue; jurisdictional boundary is important when we have visiting forces in New Zealand. I suppose the one positive thing is that we could say that any doubt around this area would encourage sending States to negotiate a status of forces agreement with New Zealand, because that certainly would clarify the issue.

Despite that slight concern about jurisdictional boundaries and how the New Zealand Bill of Rights Act affects that issue, overall the bill is a sensible measure to replace the Visiting Forces Act of 1939. It finally enables us to ratify our status of forces agreement with Australia. All I can say is thank goodness the Labour Government has finally got off its lazy backside and put this legislation through the House. It has taken the Government 5 years. It is unfortunate that that sends a negative message to Australia about the priority this Government attaches to our relationship with Australia.

Madam Deputy Speaker—

💬 Dail Jones: No, you cannot do that. That is not the agreement any more.

💬 Jill Pettis: We have given him our call.

💬 Dail Jones: I will let it go, but that is not the agreement that was reached with the Speaker.

Madam Deputy Speaker, I am taking the call because I understand that there has been an agreement, and that the Government has assigned this call to me, and I am grateful for that opportunity. I will not take long, so the member will get his call, probably shortly after the luncheon adjournment.

I want to pick up on the point that the previous speaker finished on. This bill does update legislation that is 65 years old, and it does provide for the incorporation of status of forces agreements into the ambit of this legislation. I think the previous speaker’s concern about jurisdictional boundaries, the application of the New Zealand Bill of Rights Act, and the interpretation of section 3 of that Act, are covered by his subsequent comment that the impetus will be for visiting forces to negotiate a status of forces agreement, which will cover that particular situation. We discussed this matter in the Foreign Affairs, Defence and Trade Committee, and I want to acknowledge, as the chair of the committee, the contribution that all the members made to this matter. Mr Jones, with whom we had a wee contretemps a moment or two ago, and other members—

💬 Madam DEPUTY SPEAKER: I am sorry to interrupt the member, but the time for the lunch break has arrived. I want to clarify that what Mr Jones said is absolutely right. I thought there had been agreement, but it is right that the No. 3 slot is not a tradable slot.

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

When the House adjourned for lunch I was commenting on the remarks of the previous speaker, Dr Lockwood Smith, who had raised some interesting questions regarding the application of clause 18, which applies the New Zealand Bill of Rights Act 1990 to the provisions of the Visiting Forces Bill, and in particular his comments relating to section 3 of the New Zealand Bill of Rights Act, which is a fairly tight definition, and how it might be applied in the case of visiting forces. I was making the observation that, to some extent, he had answered his own question, because he opined at the end of his remarks that maybe this would be a further reason why visiting forces ought to conclude a status of forces agreement in respect of any particular attachment, because that would in effect deal with the issues that are still unclear as a result of clause 18. I think he is absolutely correct. My recollection of the discussion at the Foreign Affairs, Defence and Trade Committee is that when we dealt with these matters we did delve deeply. We still ended up with a grey area, but we came to a pragmatic conclusion that had two legs to it. Firstly, there was the issue of individual status of forces agreements that might be concluded. Secondly, there was the notion that if we got into a really difficult situation in that regard, the particular person who was the source of the difficulty would probably be whisked away home by his or her superiors at the drop of a hat, anyway.

The only other observation I will make in respect of this third reading, which has widespread support, is that Dr Lockwood Smith spent some time in the opening part of his speech criticising the Government for the tardiness in the preparation of this legislation, particularly in respect of the inclusion in this legislation of the 1998 status of forces agreement with Australia. He referred to the recent Australia New Zealand Leadership Forum and the remarks made by the Australian Foreign Minister, Mr Downer, which were interpreted as being somewhat critical of New Zealand. I will make a couple of comments in respect of that view.

First, with regard to whether the Government has been tardy in the preparation of this bill, others will make that judgment, but I make this comment: if this bill provides for status of forces agreements to be incorporated under the heading of the Visiting Forces Bill, and if, as we have just discussed, at the end of the day in a lot of these matters the primacy will lie with the individual status of forces agreement, it does not matter greatly whether the agreement with Australia was included in this bill at this time or at an earlier date.

The second point I would make, with regard to Mr Downer’s observations, is that I was one of the few New Zealand politicians who were present at the leadership forum. I do not recall any critical comments about New Zealand being made by Mr Downer in the context of that forum. The only critical comment that I recall Mr Downer making, as I would remind the honourable member Dr Lockwood Smith, was made a few days earlier, when he said, with regard to the nuclear impasse between New Zealand and the United States, that it was a great pity the National Party, which at that point seemed keen on changing the law, had not done so when it was in Government. So I think that for Dr Lockwood Smith to use Mr Downer’s alleged criticisms—and I am no defender of Mr Downer—is somewhat strange, given that the criticisms were actually of his own party and not of any actions taken by the Government we have at present.

This bill is difficult to find substantive argument with. The select committee spent a lot of time on the jurisdictional issues, and at the earlier stage, in the Committee, I acknowledged the contribution of members such as the select committee’s deputy chairperson, Winnie Laban, Mr Power, and others in that discussion, because it was a constructive process. As a result, we have emerged with legislation that I think every party in Parliament will support, and that our armed forces are keen to see put in place. Given the increasing role of New Zealand in terms of both our detachments overseas—the 14 or so deployments we have at the moment—and the two-way traffic that that creates in terms of people coming here, then agreements of this type will be more relevant. The original Visiting Forces Act was written in the context of World War II. There is a vastly different environment today, and this legislation brings us up to speed. I conclude by acknowledging the work of my colleagues on the select committee, congratulating them on their efforts, and making the observation that we have a sound bill that will serve New Zealand well in the future.

New Zealand First supports the Visiting Forces Bill. This is legislation that brings up to date and amends the law relating to visiting forces to reflect recognised international practice, and enables New Zealand to give effect to status of forces agreements concluded with other states. It is a straightforward matter and we do not intend to delay it any further. New Zealand First supports the bill.

I rise on behalf of the Greens to support the third reading of the bill, as we have supported it through its previous stages. I think support for the bill is really a practical matter. We have to allow visiting forces some autonomy in their affairs in this country. That is the nature of armed services; they have their own codes of discipline and ways of operating, and it would be very difficult in a practical sense to have visiting forces here without that provision. But we should have two cautions in relation to that. Firstly, we do not wish the individuals who are part of the visiting force to suffer some injustices in the way they are treated by the command of the visiting force. Secondly, we do not want visiting forces to affect New Zealanders or their property, without obtaining some sanction. I think the bill has been worked out with this in mind.

The bill proposes updating the base document for visiting forces, which has been longstanding, to make it more appropriate today. On top of this, for each visiting force a status of forces agreement would be discussed, negotiated, and signed. In one sense this base document grants sovereign immunity to the members of the visiting force, but this does not mean that New Zealand should wash its hands of what happens to its members, or the consequences for New Zealand. There is a bit of a problem if somehow, in the process of justice within the visiting forces, injustices do occur. We can illustrate this by clause 9, which has two parts. Firstly, the “visiting force must not impose, or carry out, a sentence of death in New Zealand”. That covers the situation where the visiting force imposes or carries out the death sentence here, but it does not necessarily cover the situation where the alleged offending member of the visiting force is dragged back to his or her home country and then has the death sentence imposed and carried out. Surely we want to guard against that. This does apply here because there is the death penalty in Singapore and China, and we can have visiting forces from those countries. Singaporean troops come here fairly frequently. How would that issue be dealt with? It came out in the Foreign Affairs, Defence, and Trade Committee that it would be handled primarily by negotiation between New Zealand and the Government concerned—say, the Singaporean Government—to make sure that it never eventuates and that an offence committed in New Zealand by the visiting force cannot result in the offender being sent back to his or her home country, being condemned to death, and that sentence being carried out. We would have to be very conscious of pursuing that, in the spirit of the bill.

The second question is due process, and again the justice systems in countries like China and Singapore are not terribly good on due process. We all know about China, I think, and it is much the same in Singapore. In this so-called war on terrorism, one often reads in the newspapers about people being arrested in Singapore as alleged terrorists and put in jail. Then one reads the fine print and finds that not a single one of them has ever been brought to trial. They are all sitting there in jail, on renewable sentences under the Internal Security Act, without any due process whatsoever. We have to guard that members of visiting forces who allegedly commit infractions are treated in a just way. Again, it would be a process of negotiation between the New Zealand Government and the Government of the visiting force to make sure that did happen.

The other part, clause 9(1)(b), states: “The service authorities of a visiting force must not—(b) do any act in New Zealand that would, if done by a member of the Armed Forces of New Zealand, constitute an offence under the Crimes of Torture Act 1989.” That provision has gained more relevance in recent times, with all the pictures shown around the world of what has been happening under the jurisdiction of the American forces in Abu Ghraib prison and at Guantanamo Bay, etc., and it has relevance here because we have a US visiting force in this country. I do not think it is terribly likely that the current commander of the visiting force at Harewood is torturing American soldiers—I do not think that is terribly likely, at all—but I think it alerts us to the situation that we have to look at how the visiting force treats its prisoners, or even members of its own armed force. It is clear from what has been said in all the Amnesty International reports, and even in American Government reports, that the Americans have treated prisoners in Guantanamo Bay and Abu Ghraib, and in other places in Iraq, in ways that are contrary to the Crimes of Torture Act, in terms of putting hoods on people, putting them in painful positions, threatening them, and doing what amounts to a form of water torture, etc. There is quite a big list of ways in which American forces recently have clearly acted contrary to the Crimes of Torture Act and to the international convention on torture. We would have to keep an eye on that.

This relates to another point that occurred to me when thinking about this problem. It is not specifically in the bill, but perhaps it should go in the status of forces agreement that would be set up on top of the legislation. This point is about having more transparency in the justice operations of visiting forces when they are in New Zealand. Even if we allow them jurisdiction over how they deal with their own soldiers, there could be some system whereby the nature of the application of that justice, and any questions about the nature of the application of that justice, are made available to the host country—in this case, New Zealand—so that if there are any concerns about torture or anything else, they can be negotiated between the Governments of the two countries. I think that that would be a fit with this bill.

The other question is about the New Zealand Bill of Rights Act, which Peter Dunne referred to. I think it is important that the New Zealand Bill of Rights Act applies to any New Zealander who may be working, in one way or another, with the visiting force. I think that in that respect we should never put New Zealanders outside the ambit of New Zealand legislation and of the New Zealand Bill of Rights Act.

The other question I want to raise relates to civil jurisdiction, beyond criminal jurisdiction. We have a problem here, in a sense, and it can even apply to the history of the US visiting force at Harewood. Various children have been fathered by members of the American visiting force there, and there have been various civil suits relating to paternity, responsibilities, and things like that. I think it is important for the New Zealand Government—although this is not strictly a part of this bill—to be engaged with those issues, and not to say that just because the soldiers have gone back to Milwaukee or somewhere, the effect of the members of that visiting force on New Zealand citizens, such as women who bear children by those soldiers, is of no concern.

I think it is important that in negotiating the status of forces agreements, we take a tough line on some Governments—such as the American Government—that may not want to have this transparency and have any interference at all in their activities. The American Government is a bit more open to negotiations now. The other day it had to accommodate a vote at the United Nations Security Council about the application of the International Criminal Court to its soldiers in Iraq. The American Government has not fully accommodated the International Criminal Court, but it has had to start giving ground under pressure from the international community. I think we should approach negotiations with the United States in the confidence that we do have the people of the world behind us in making sure that visiting forces operate correctly. We do not want a situation as, for instance, has occurred in Okinawa. I heard on the radio the other day a woman saying that there have been hundreds of cases of US Army infractions against women in Okinawa, which has caused great hostility amongst the people of Okinawa. We want our relations with visiting forces to take account of the human consequences.

The ACT party supports the Visiting Forces Bill. It is clearly necessary legislation. It is clearly overdue legislation. The status of visiting forces is an important issue, and all around the world various jurisdictions have confronted this problem. I note that back in 1998 the New Zealand Government signed an agreement with Australia with the intention of amending the law to bring it into line with international law and practice relating to the status of visiting forces, but that it could never be ratified because of New Zealand legislation dating back to 1939. Our 1939 legislation prohibited us from ratifying the agreement we signed with Australia in 1998.

I guess the issue here is why the Government has taken so long to bring what I regard as important legislation to the House. Admittedly, we are now doing the third reading under urgency, but the Government has been in office for over 4 years, and surely could have brought this matter—which is quite a minor matter in a procedural sense—to a close earlier. The bill clearly has the support of the whole Parliament. It is not a question of battling it through Parliament. I say to the Minister, Mark Burton, that he really has no excuse for not having brought this bill to Parliament at a much earlier date than today.

Suffice to say that the ACT party will support this bill. In so doing, we express our regret that New Zealand is now so far out of the sphere of influence of other forces. New Zealand has become isolationist, and that is of deep regret to the ACT party. We have been cut off here in the South Pacific, and our military people are very concerned that they do not get to exercise enough, and that we do not have sufficient foreign troops exercising in this country. We used to have the Five Power Defence Arrangement, which was very active. I say to the Minister that it still exists in name, but unfortunately there is nothing like the scale of activity that we used to see. I know that New Zealand’s armed forces used to benefit considerably from the activities under that Five Power Defence Arrangement.

But ACT is happy to see the bill going through the House, and we express regret that this Government has taken so long to bring it here.

I will not take up the House’s time by repeating the comments my colleague Marian Hobbs kindly made on my behalf, but it is important that I add to that my appreciation of the officials and the members of the Foreign Affairs, Defence and Trade Committee that dealt with this bill. It is a complex piece of work, and it took a considerable amount of development and consultation to get it right. As Mr Shirley quite rightly said, it will now allow the ratification of the status of forces agreement with Australia.

I want to conclude by giving Mr Shirley some good news. He is, clearly, very out of date with his Five Power Defence Arrangement—“arrangement”, in fact, is the name of the arrangement we have. Not only is it in good shape, it is more active than it has ever been. New Zealand is playing a bigger part than it ever has—

💬 Hon Ken Shirley: Absolute baloney!

I can tell the member that I have just returned from the Five Power Defence Arrangement Ministers’ meeting in Singapore, where Ministers agreed to an extension of the arrangement to incorporate the non-conventional threats that increasingly confront the defence forces of the world. Indeed, down the track it is our expectation that the contributing nations are likely to see not only military elements involved in exercises, but, increasingly, non-military agencies, as well. As we all understand, and as it dominated our discussions—as it did at the International Institute for Strategic Studies conference I attended, at which I met with 15 Ministers of Defence, including Secretary Rumsfeld, Adam Ingram from the United Kingdom, my colleague from Australia, and many others—it is the non-conventional threats that are now the biggest issue confronting the security of nations.

It is in that area that New Zealand is playing an increasingly important part. The strength of our working relationship has never been better. I am happy to give that good news to the ACT party, and to give it an update on what is actually happening in the big world out there. I pass on my congratulations to the House on supporting this good legislation.

Bill read a third time.