Third Readings

on behalf of the Minister of Defence: I move, That the Armed Forces Discipline Amendment Bill (No 2), the Court Martial Appeals Amendment Bill, the Defence Amendment Bill (No 3), and the Court Martial Bill be now read a third time. The Committee of the whole House divided the Armed Forces Law Reform Bill into the four separate bills that are before this House today. I welcome the strong support of the House for this legislation, the purpose of which is to establish a modern, effective, and fair system of military justice. The legislation being amended dates back to 1971, and reform is needed to take into account considerable changes in attitudes and the environment since that time.

The principle followed in the new bills is that the military justice system today should, to the extent possible, given the need for efficient and disciplined operation of the New Zealand Defence Force, apply to Defence Force personnel the same rights enjoyed by other New Zealanders in the overall criminal justice system. During the second reading and the Committee stage of the Armed Forces Law Reform Bill a number of members have rightly referred to the reforms contained in these bills as representing a once-in-a-generation opportunity for this House to provide the New Zealand Defence Force with a modern military justice system that reflects the values that we hold strongly as New Zealanders. Today we set a new milestone, which will stand New Zealand’s armed forces in good stead for another generation.

As our Defence Force of today modernises to meet new and complex challenges throughout the world, it is fitting that we should have a new military justice system that is suited to the conditions of our armed forces in the 21st century. Today our Defence Force has a very high degree of joint orientation, in which the three services operate as one force. This is evidenced by the success of the Headquarters Joint Forces New Zealand in Trentham. It is also evidenced in the operation of our armed forces overseas, such as the provincial reconstruction team in the Bamian province, which is, and has been since its inception, a joint deployment comprising members from all three services.

At the same time, New Zealand has bound itself to important international human rights standards, which have been incorporated into our law. We have a proud and deserved reputation for being upholders and advocates of those rights at home and abroad. Our forces, like all modern deployed forces, are subject to unprecedented scrutiny through the media and the World Wide Web. Issues such as the legitimacy of military action, respect for the rule of law, and compliance with the law of armed conflict are of vital interest to the public of this country. These issues can greatly affect public support for the action being undertaken. The military justice system that this Parliament delivers to the men and women who serve this nation in the Navy, the Army, and the Air Force must take into account this new reality when it delivers the vital elements of a military justice system—discipline, consistency in all strategic environments, portability, expedition, fairness, efficiency, and simplicity. I believe that these bills achieve that objective.

The Armed Forces Discipline Amendment Bill (No 2) will standardise across the three services the delivery of justice at the summary level, and will ensure that service members appearing before their superiors on disciplinary matters will be better advised of their rights and will have someone to speak on their behalf. It will remove the anomalous distinction that has prevented senior officers being dealt with summarily for minor offences, thereby ensuring that military justice is applied in an even and transparent manner to service members, regardless of rank. It creates a new position of Director of Military Prosecutions; an appointment that will greatly enhance the independence of the decision whether to prosecute a member of the armed forces before the Court Martial of New Zealand. It also creates a Summary Appeal Court of New Zealand, before which any summary disposal may be reheard by an independent judge.

The bill also creates a new body called the Armed Forces Discipline Committee. This committee provides commanders and the members of the military justice community, including the Judge Advocate General, with the ability to set sentencing guidelines for offences against the Armed Forces Discipline Act 1971. With the abolition of the board of review, this measure was regarded as being necessary in order to provide command input to the maintenance of discipline and to ensure consistency in sentencing.

The Court Martial Bill will establish for the first time a Court Martial of New Zealand as a permanent court of record. The bill provides for the constitution, powers, and procedures of the court. In particular, it provides that the judges of the Court Martial of New Zealand will preside over hearings and may more efficiently deal with preliminary issues before the military members of the court have been assembled.

The bill introduces many new features reflective of the nature of modern armed forces and the manner in which discipline should now be effected within them. For example, warrant officers will be able to sit as military members of the Court Martial of New Zealand. The bill also contains provisions for the granting of bail. It will introduce a greater measure of independence and impartiality into the court martial system. The bill will bring about a significant number of other amendments that will make the administration of justice in the armed forces more effective and fairer.

The Court Martial Appeals Amendment Bill will introduce important new provisions relating to the constitution, procedure, and powers of the Court Martial Appeal Court. For example, a person convicted by the Court Martial of New Zealand will be able to appeal to the Court Martial Appeal Court against conviction or sentence, or both. The Director of Military Prosecutions will be able to appeal to the court against sentence, unless the sentence is one fixed by law, and against a ruling on a question of law made by a judge of the Court Martial of New Zealand.

The Defence Amendment Bill (No 3) clarifies the relationship between the new appeal process at summary and court martial level, and the very important right that members of the armed forces have to seek a redress of a complaint about any other matter from their commanders under the Defence Act.

These four bills contain a comprehensive package of reforms that update significant parts of the military justice system. The reforms ensure that in the course of maintaining military discipline, which is vital to an effective modern Defence Force, we also provide for the delivery of the highest possible standards of justice to those men and women who serve their country in our armed forces. I commend these bills to the House.

The National Party, of course, is supporting the legislation arising from the Armed Forces Law Reform Bill. We recognise that this is an important update of New Zealand’s armed forces law.

I want to reflect on the unusual coincidence today. Earlier in the day we were talking about the Terrorism Suppression Amendment Bill, and I want to touch on that briefly. Later we dealt with the Crimes (Repeal of Seditious Offences) Amendment Bill, and now we are dealing with this legislation. They are all about the rights of citizens, in each and every case.

One of the things that concerns me is some of the quite extraordinary statements made in the House today by some members of political parties who should know better. They have sort of confused, if I can put it that way, genuine intent around issues of Māori self-determination and so forth, with actions of the legislature today that actually deal with international terrorism.

I want to reflect on the very high level of threshold that international terrorism must meet. These are the issues that our armed forces are dealing with overseas—in Afghanistan, at this time, and elsewhere. Indeed, Corporal Willie Apiata got a Victoria Cross in relation to New Zealand’s operations in Afghanistan, which were all about international terrorism. I say to the Māori Party, the Green Party, and, to my surprise, I must say, the ACT party that the legislation on terrorism that was debated today was actually about international terrorism. It was about designating groups that the United Nations by unanimous consent had designated as international terrorism organisations. No country, including Iran, dissented from the categorisation of those entities as international terrorism organisations. To find that parties in this Parliament today are essentially saying they want New Zealand to opt out of our international obligations, which were agreed to by virtually every State on the planet, beggars belief.

When I hear Mr Hide declare that the United Nations’ designation of these entities as terrorists—the very people who committed the acts on September 11—was some kind of fascist legislation, I think it beggars belief. That speech has to be one of the most extraordinary speeches I have ever heard in this House on an issue on which we expect people to lift themselves up a bit, expect people to take their role as legislators a little more seriously. I sort of have an understanding, I think, of the New Zealand Māori Party, which has deep-seated issues that arise from the Tūhoe people and their very particular history in New Zealand, extending over 100 years and involving the confiscation line. Clearly, there are issues of sensitivity around that, and I well understand that. But we have to remind ourselves that, fundamentally, there was not a conspiracy, no more so than it was a conspiracy that we ended up debating today these three pieces of legislation. The Terrorism Suppression Amendment Bill, the Crimes (Repeal of Seditious Offences) Amendment Bill, and the legislation arising from the Armed Forces Law Reform Bill are not part of some sort of perfect storm of conspiracy; they just happened to arrive in Parliament all precisely at the same time.

I really do ask members of Parliament to lift their sights and take these issues a little bit more seriously. I know that the smaller parties have particular issues and objectives, but surely they must recognise that New Zealand as a democratic country in the family of nations, and as an ardent member of the United Nations, has responsibilities under the United Nations when it comes to international terrorism. Surely those parties recognise that reality. I ask them to show some recognition of that reality, if not in their votes then at least in some of the language they use.

Turning specifically to the legislation arising from the Armed Forces Law Reform Bill, the Foreign Affairs, Defence and Trade Committee worked long and hard on it, and I think that would be conceded by members of that committee. We knew we had a once-in-a-generation chance to get it right, and we were concerned to ensure that individual service people—men and women, deployed overseas, in particular, but also in New Zealand—had full access to their civil rights. That means putting in place a modern judicial system. I think New Zealand, as a nation, has been very careful to ensure that those rights are fully protected, so that, for instance, future courts martial will look like proper courts of law. I would have to say that in the past they did not always meet those thresholds.

I see Ron Mark, who had long and deep experience in the military, acknowledging that point. He made some very pertinent points, I must say, during the Committee stage on how rights have been ridden roughshod over and people have been effectively required, I would go so far as to say, to plead guilty to things they did not do. One of the important points of proper procedure is that people’s substantive rights actually are protected.

I come back to the issue that we were discussing earlier today—the importance of procedure in protecting substantive rights. The United Kingdom, Australia, and the United States—admittedly, countries much closer to the sources of terrorism—have changed the basic procedural rights of their citizens. The fundamental change that they have made has been to give the authorities—particularly the police—the ability to question people before they are charged. They can haul them in as suspects, and detain them for a lengthy period of time, and it is not just to give them lunch; it is to question them intensively. We have seen examples of the nature of that questioning. It can be extraordinarily coercive. How can substantive rights be protected when we ride roughshod over procedural rights?

I said earlier that the fundamental rights of New Zealanders are protected, that the police cannot arrest people without charge—and a charge means that people have to be brought before a court, and the charge has to relate to a particular offence in a statute. That is a huge protection that all New Zealanders have, and at no stage has this Parliament or any political party ever given even a thought to infringing those basic rights. So the whole point of this legislation is to protect the procedural rights of service people, be they in summary charges or in court martials, because, as a very wise person in this Parliament said—a person who has deep experience of international negotiations—arguments about procedure are actually arguments about substance, and if we take the time and trouble to protect procedural rights, then we actually protect people’s substantive rights.

We have done that in the terrorism suppression legislation, and I want the smaller parties to recognise that reality. We have tonight literally repealed sedition laws in order to protect people’s rights. And today I am pleased to say that the National Party is taking its part and its role in protecting the procedural rights of service people, so that their substantive rights are preserved for at least another generation. I believe that this legislation will give our service people, whether serving in New Zealand or abroad—including those dealing with terrorists, who attack the very foundations of our democratic society—the rights that they are actually defending.

I rise to speak in the third readings of the bills coming out of the Armed Forces Discipline Amendment Bill, which are the Armed Forces Discipline Amendment Bill (No 2), the Court Martial Appeals Amendment Bill, the Defence Amendment Bill (No 3), and the Court Martial Bill. I find it very interesting—although I agree with his final conclusion—that the argument of the previous speaker, Dr Wayne Mapp, was somewhat convoluted and not necessarily consistent with other arguments he has put forward in the past. But I am sure we will be able to use his speech many, many times in the future.

💬 Hon Lianne Dalziel: Absolutely—I’m going to quote it tomorrow.

The Hon Lianne Dalziel says she will be able to use it tomorrow when discussing other pieces of legislation. In Dr Mapp’s speech, process and the content seem to be equated as one, and I am sure the logic will come back to haunt him. His speech was not necessarily consistent with previous speeches, but it is said that consistency is the sign of an unthinking mind.

I want to mention today that I recently attended an art exhibition in Hamilton. It was actually a book launch by a well-known artist who is also a playwright. His name is Campbell Smith. Campbell Smith wrote a play that was performed in Parliament, in the room next door to this one, called Soldier’s Song, which was about New Zealand soldiers executed in World War I by the British Army after a court martial, supposedly for desertion. Through the efforts of Campbell Smith and my colleague Mark Peck in 2000, a pardon was obtained for these New Zealanders who lost their lives in a dreadful war.

When thinking about this legislation, it is fortunate to think that that circumstance will never ever happen again. In New Zealand we have our own armed forces discipline legislation, which not only applies to New Zealand and is administered by New Zealand but has been reviewed. I thank the two people involved, Brigadier Riordan and Commander Griggs—particularly Commander Griggs—for the tremendous amount of work that has gone into these bills.

The previous speaker said that the Foreign Affairs, Defence and Trade Committee worked hard. Commander Griggs has worked very hard and thoroughly over a number of years, coming up with four pieces of legislation that are very profound and accurate. We have found only one mistake now that we are at this stage of the bills’ passage, and that is where we referred to “accredited journalist”. I understand there is no such thing. I think probably “discredited journalist” might be more correct. But the error is in several pieces of legislation, and the Minister has promised to look at those in the future in respect of the term “accredited journalist”. Evidently, such a thing does not exist in New Zealand. Apart from that, this bill has been a very thorough exercise in drafting legislation. I have been tremendously impressed by the work of those who have prepared the legislation and, as I said, worked very, very carefully with the select committee.

As has been said, this amendment brings the legislation up to date. It is consistent with international developments, particularly with movements in the UK and in other like-minded countries to ours. It makes the law consistent with the New Zealand Bill of Rights Act 1990, which has been quoted several times in the House today. It allows servicemen and servicewomen similar rights as those enjoyed by civilians, and, in so doing, brings the legislation up to date. Also, perhaps it makes the armed services more attractive employers in terms of the rights of people who work within them.

We have noted that the legislation brings about a degree of cooperation between the three armed services, that it has bound New Zealand to our own human rights standards, and that it brings international human rights standards into the law. Also, it has brought about a consistency of strategic environment in terms of fairness, efficiency, and simplicity in the justice system within the armed forces, and it has standardised these issues.

The select committee did have changes to make—some amendments around timing, around petitioning, around delegation, around promotion, around hearing of appeals, around bail, around media access, around the chaplains, and about legal representations. So there were a number of amendments, but those amendments were worked through very thoroughly with the committee staff and those who had drafted the bill, and I think it has been a very successful exercise all round.

In particular, I want to thank those who made submissions on the bill. As has been said before in earlier readings in this House, it is a bill where we are not going to get a lot of public involvement, because it is very specialised legislation—it is legislation dealing with the armed forces. But there were several submissions from legal experts, and we also had submissions from judges and those involved through this procedure. Those submissions were very good, and very constructive. Ideas were taken on board by the select committee, and I think members of all parties on the select committee worked together to come up with what we hope is very workable, very successful, and much more modern legislation. In many ways we look forward to seeing some cases brought before the law to see how the new legislation will actually work out and be implemented. We look forward to its successful use and implementation.

Once again, a big thank you to both Riordan and Griggs for the work that has been done. I said before, in a debate on a previous bill, that it is a pity we cannot put the names of people to bills when they have done so much work. Nevertheless, those who have done all the work will have the personal satisfaction of seeing the legislation coming into force and knowing that it is part of the New Zealand law.

As we have said, the legislation is divided into four bills and we are now in the third reading process of those four bills. I thank everyone involved and look forward to the implementation and the signing by the Governor-General of the four pieces of legislation before us as a whole: the Court Martial Bill, the Court Martial Appeals Amendment Bill, the Defence Amendment Bill (No 3), and the Armed Forces Discipline Amendment Bill (No 2). I thank everybody once again for the work involved and the effort they have put into it, and for the cross-party cooperation on this legislation.

As we reach the end of this very long process this is a chance, I think, to reflect on the overall debate. This is the first time I have looked at defence issues through the prism of legislation that is a very comprehensive part of the New Zealand armed forces. It was a very interesting way to look at the evolution of thinking politically about defence.

Quite clearly, discipline in the armed forces is an absolute integral element in the overall picture. Without a comprehensive military justice system that keeps up with the realities of maintaining discipline in a military environment, and up to date with social changes and other legislative changes, we cannot have confidence that New Zealand has the armed forces that we need.

This has been an extremely detailed exercise. As we have said on frequent occasions, we have been extremely well served by the professional legal services of the New Zealand Defence Force. But I would also, like Dr Mapp, like to hark back to a very interesting speech Ron Mark made at the second reading, I think it was. It is always interesting to listen to somebody—whatever the subject of the bill may be—who actually has some genuine personal or professional experience in the topic of debate. The burden of his remarks was that politicians have not, at all times, served the men and women of our armed forces properly. Yes, there has been lip-service, but when we come down to the stories that Ron Mark told the House about some of his training experiences, members would be hard-pressed, if they could keep a straight face through some of those stories, to argue that we—or our predecessors, in some cases—not only talked the talk but walked the walk.

My sense is that this legislation has come into the political process at a time when, quite genuinely, I see a new political basis for defence, moving forward, in a very interesting and sustainable way. We ask a great deal of the men and women of our armed forces. I do not have in mind the normal issue when I say that—the issue of the, literally, supreme sacrifice. I am thinking about the highly complex role that our modern defence force has to play and the way in which it is really closely integrated now with what we on the National Party side have accepted is an independent foreign policy. The role of our defence forces—and I do not suggest this is an original way of characterising it—requires a political role in terms of providing governance in gravely weakened States in our region.

The role of discipline, and thus the purpose of this legislation—and there is a huge technical exercise that we are bringing now to a successful close—is absolutely central. We do ask a lot of these generally young men and women to go off into unfamiliar societies, play these roles, and maintain internal discipline. We know that in certain highly publicised cases peacekeeping officers from certain other countries have not maintained discipline, and that that has been absolutely lethal to the underlying purpose of their being there in the first place. It is more than lethal; it is totally counter-productive. They are exposed to unfamiliar situations and different cultures. We in the National Party take the criticism that Mr Mark made, but I think today we fully recognise that in these complex roles the multicultural aspect of our armed forces, particularly our army, is of immense political benefit, obviously to New Zealand but also to our other partners. I would not want to publicly refer to some conversations I have had recently with some very senior foreign policy strategic figures in Australia, but I have had conversations. In one of those conversations, one particularly noted strategic thinker in Australia came up to me and said, quite bluntly: “Your guys are actually much more effective than ours, for that very reason.” I think he is absolutely right.

This is an important thing to consolidate politically. Closely associated with that aspect of the wider environment within which we have been looking at the role of discipline, and thus military justice, has been the slow coming together of a view—which we can describe in various ways—about the future of our armed forces. Some people describe this future as being in a niche role, with higher specialisation and a focusing on core strengths. Whatever phrase we want to use, there is a germ of a very shared view here that in a country of our tiny size, the three constituent groups that literally, in numerical terms, are the largest contributors to this multicultural society—the English, the Māori, and the Scots—each have a warrior tradition that has come together to form what is “New Zealand Inc.”

💬 Martin Gallagher: What about the Irish?

The Irish? I stand to be corrected if the Irish are numerically of equal importance to our population base, but I do not believe that is the case. I think the Irish, too, probably also have a warrior culture. Whether or not the member is correct in terms of the arithmetical point, I take his point. In any event, coming together now is a distinctive warrior culture that has been part of our past.

We cannot do all things; we know there are some things, historically, that the New Zealand armed forces have been extraordinarily good at. They clearly centre, in part, on the army, and I think that this new consensus that has emerged is that we have to put the resources and the other efforts into building up those aspects of our armed forces that can make the biggest bang for the buck. I think this is quite a profound change. I do not want to take that too far. I entirely lack the expertise to explore the limits of this policy—I say “limits”, because I am quite sure that if we took this to an extreme, it would collapse. We need, for example, facilities for training our army with strike-force aircraft, which is a sort of sub-theme in the whole issue of the Aermacchis debate. I do not have the expertise to take that analysis. That is one of the reasons why the National Party in its recent discussion paper has foreshadowed a white paper—as a means of consulting, both within New Zealand and with countries we work closely alongside, to try to put some flesh around some of these new ideas.

It is about large money. We all know the political cliché of the senator saying: “A billion here and a billion there, and pretty soon you are talking real money.”, and concerning the armed forces we are talking very large sums of money. They are modest by international standards but significant by our standards. The over-expenditure on the NH90s, between the actual cost and the upper-bound estimate given to the Government of the day, was enough to build the Auckland City Hospital. Those are the sorts of hard policy issues that have to be dealt with in the future.

All of this really comes down, I think, to a new basis in which this country can move forward on defence. Military justice and the maintenance of discipline is a unique problem in the armed forces. We have brought this up to date, I think, with the aid of our expert advisers, in a way that I believe will serve the test of time. We certainly all know that although this is an issue that will not engage the public interest much at this point, behind this was always the historical reality that when military justice goes wrong the public reaction will be immensely strong, and can literally last a hundred years, or more, if a grave injustice has been seen to be done.

So we have worked through these issues. We have established, I think, a far more independent justice system, and I hope that somebody in 20 years’ time, when he or she next comes to have a look at this space, will say that we have done a reasonable job for the beginning of the 21st century.

The House adjourned at 9.59 p.m.