Military Justice Legislation Amendment Bill

I move, That the Military Justice Legislation Amendment Bill be now read a second time.

Tuatahi e tika ana ki te mihi ki tōku hoa Mark David Whittaker: moe mai, moe mai rā.

[Firstly, it is right to acknowledge my friend Mark David Whittaker: rest in peace.]

In commencing the second reading of this bill, I wish to acknowledge and pay my respects to a veteran, former soldier, senior firefighter, urban search and rescue firefighter, and decorated hero of the Christchurch earthquake, Mark David Whittaker, whose funeral was held this morning in Rangiora. Mark was a veteran. He was aged 45 and leaves behind his wife, Carol, and three children: Charlotte, Mason, and Lauren.

In moving this second reading of the Military Justice Legislation Amendment Bill, it doesn’t go unnoticed by me that when young men and women enter the New Zealand Defence Force, they swear allegiance and they accept that from that point on they are subject to military law, which puts them in a rather unique position where they become New Zealand citizens who are subject to two forms of law: the standard law that every New Zealander is subjected to, and they take upon themselves a code of honour, ethics, and values, and knowingly accept that should they transgress or breach any of the military laws that, from that moment on, apply to them, they will be judged and, in some cases, judged far more severely than would be the case with a civilian accused and convicted of a similar crime.

And I just make the point that service personnel like Mark David Whittaker accept these rules without question and everything that comes with them, which, in the early part of their career, which is their recruit training phase, can quite often see them appearing in an orderly room on charges for transgressions—some as huge and horrific as having twisted boot laces, dust in the welts of their shoes, or a dirty rifle! Of course, that is at the lower end of the military justice system, where young men and women going through their initial training are subjected to the rigours of military training and have the discipline required to make them effective military personnel instilled in them. It’s with that in mind that I move this second reading.

As I said in the first reading, the purpose of this bill is to enhance the efficiency, transparency, and consistency of the military justice system with the law governing the criminal justice system and to correct minor flaws in the relevant legislation. This bill has been considered by the Foreign Affairs, Defence and Trade Committee, which reported back to the House on 4 May. The select committee process and the committee’s report demonstrate the strength of this bill and the broad support that it enjoys both in this House and within the wider community.

The committee received only four submissions: one from the New Zealand Law Society, one from the Office of the Privacy Commissioner, one from the National Council of Women of New Zealand, and one anonymous submission. The National Council of Women and the New Zealand Law Society explicitly acknowledged and supported the purpose of the bill. The National Council of Women attended the committee to make an oral submission, and given the focus of this bill in enhancing victims’ rights in the military justice system, they were particularly interested in how it might affect the situation of women in the armed forces. This resulted in a commitment by the Defence Force to provide the National Council of Women with more information about Operation RESPECT.

Operation RESPECT is an organisation-wide military operation, launched by the Chief of Defence Force in 2016, to eliminate harmful and inappropriate behaviour in the Defence Force. The Defence Force is to be commended for this initiative, and I think the House will agree that the interest of the National Council of Women and the defence forces engaged with them has been appropriate and timely.

The New Zealand Law Society made a very good point that the purpose of the bill, to align military justice processes with those in the ordinary criminal courts wherever possible, would be frustrated if the bill was not amended to take into account some changes to ordinary criminal law which were proposed in the Courts Matters Bill. The Courts Matters Bill is currently being considered by the Justice Committee and is not due to be reported back until 24 May. If passed in its current form, that bill would change the way in which the issue of fitness to stand trial is approached in ordinary criminal courts. At present, the court must first satisfy itself, on the balance of probabilities, that the defendant did the alleged act. This is called “the involvement inquiry”. Then, if the court is satisfied of that, it hears medical evidence to determine whether the defendant is fit to stand trial. That is called “the fitness inquiry”.

The Courts Matters Bill will reverse the sequence of the involvement and fitness inquiries. There are equivalent provisions relating to fitness to stand trial in the Armed Forces Discipline Act, but, unfortunately, the Courts Matters Bill does not consequentially amend those. That is the problem identified by the Law Society in its submission and covered by the Foreign Affairs, Defence and Trade Committee in their report. The Foreign Affairs, Defence and Trade Committee did not want to prejudice where the Justice Committee would recommend that this change and sequence be enacted. So it has recommended that the Military Justice Legislation Amendment Bill be passed without amendment. However, the select committee recommended that I consider moving an amendment to the bill during the committee of the whole House stage. The intent of that is to wait and see whether the change in sequence proposed in the Courts Matters Bill is recommended to the House by the Justice Committee. If it is, I intend to lodge a Supplementary Order Paper and, in the committee of the whole House, move that this bill be amended to reflect that change.

I wish to thank the Foreign Affairs, Defence and Trade Committee for their diligence in the way in which they’ve considered this bill and the recommendations they have made in their report. I thank the chairman, Simon O’Connor. I commend this bill to the House.

Can I acknowledge the Minister of Defence, who has just resumed his seat, for taking this bill through the House and here tonight as we discuss the Military Justice Legislation Amendment Bill. I acknowledge his support and work and will actually acknowledge a bit further the Supplementary Order Paper (SOP) which has been, I understand, tabled a couple of days ago, around the involvement clause. I’ll talk a little about that because it was probably—well, not necessarily the most critical—the element within the select committee which took up most of our time with how we rightly align this justice legislation with wider justice activities. So thanks to that Minister and to Mark Mitchell as well, his predecessor, who had begun work on this. I think this sort of legislation shows the cooperation that moves across the House, and I think that’s a positive thing not only for the House but certainly for the men and women of our armed forces who deserve our support.

The Foreign Affairs, Defence and Trade Committee worked hard on this. It was quite a small piece of legislation per se, but one that did occupy quite a bit of time of the committee. As the Minister of Defence noted, there were four submissions, but they were quite involved submissions themselves. So I just want to acknowledge those who took the opportunity to present to us, the advisers from the Defence Force who worked with us, and, of course, everyone else involved—the likes of the Parliamentary Counsel Office. I’m always very conscious, as the chair of the committee, that I stand alongside excellent members of Parliament and, if I might, even more excellent advisers who give us that assistance, so thanks to them.

It’s no surprise that National supports this bill. Ultimately, what it does is align military justice with what we’re familiar with in the civilian justice context, obviously allowing for some points of difference, but, fundamentally, trying to bring them into line. One of the most critical elements is around victims’ rights, to make sure that those who are victims of a crime within the military justice setting enjoy—if that’s the right word—the same opportunities as one would in a civilian jurisdiction. So something as simple—simple as a concept, not in the nature of what’s happened to someone—as if something’s happened within the military justice system, that someone who’s about to go on to bail or the like will be informed of that. In other words, the victim will get to know about it, and I think that’s quite important. The victim will have the right to be consulted, and so forth.

So, again, these are things which, in the civilian context, we’ve taken for granted, arguably, and now, through this bill, we’re modernising the Armed Forces Discipline Act and the Court Martial Act to make this possible—also the Court Martial Appeals Act. Importantly, this is an omnibus bill, so the changes in this particular legislation flow through to at least three of those.

Small other elements have gone through. One of them is around the notice of judicial appointments. At the moment, the notices have to be advertised by the Chief of Defence Force, but he or she doesn’t actually have any say in that—they’re not the one doing the appointments. It’s a bit of an anomaly, so we’re updating the law there so that whoever makes the appointment actually does the gazetting. It’s a small thing but a relative one.

The area where probably most of the discussion has occurred is around the fitness to stand trial, and, as the Minister noted, it’s usually around some sort of impairment—primarily mental, but it could be physical, but if someone’s not able to stand trial. The select committee took quite a bit of time around this, not because of the essence of what had to occur, but what was to be the right and proper procedure for ourselves as a committee to update and amend this piece of legislation correctly—to do what was our responsible job. But we were also very conscious that, simultaneously, the Justice Committee was looking at changes in this exact same area, which had effects in the civilian side of things. To put it really simply, the Foreign Affairs, Defence and Trade Committee did not want to make changes around the fitness to stand trial that may end up contradicting what the Justice Committee came back with. To put it in a different way, the changes that the Justice Committee was going to do in its domain flow into this military space. That’s the whole point of this amendment bill.

So the committee decided not to propose a change in the legislation when we reported back. Instead, we wrote in our report a fairly fulsome explanation of the dynamics and where we had landed, and encouraged the Minister to—I suppose, in good faith, but also, I think, we know his character enough that he would listen to what we had to say—put, at the committee of the whole House stage, a Supplementary Order Paper, which I’m pleased to see has happened.

The long and the short around this fitness to stand trial is just to get the process ordering correct. The Minister elaborated on this, but the first element is if someone is accused of a crime within the military space, decisions have to be made whether or not—not whether they are able to stand trial, but whether there’s enough evidence to go to trial. I think that was noted as the “involvement inquiry”. So, basically, we’re asking, if all of this passes through the House, that a person accused of a crime is judged, first and foremost—or initial judgments, the prima facie elements. Did they commit the crime? Is there enough evidence for this to proceed? If that is the case, then the question of a person’s impairment—physical, mental, or otherwise—can be judged, not the other way around.

In other words, if someone’s accused of something, simply claiming a mental impairment, and someone saying, “Oh yes, you do. We’re not going to have you stand trial”, has not been seen as fair, and particularly not fair to the victims who are saying, “Well, hold on a moment. Could there at least be some acknowledgment that there was at least a case here?” So we’re following in line with what the Justice Committee’s come in with, or rather the SOP that the Minister’s tabled that a person will, in effect, be accused; those making the decision, the judges or the tribunal, will decide whether there’s sufficient evidence to continue; and if there is, then the competency or the fitness of the person will be decided.

Look, a couple of other very small things that have been introduced. Someone now can object to a military member. In other words, if there’s someone who’s going to be doing the trial, that, actually, there’s an opportunity to say, “Hold on, they shouldn’t for X, Y, and Z reasons.” Obviously it’s up to the Courts Martial to decide, but there’s now a provision for an objection. The onus of proof as well has changed a little bit. So it’s ultimately now for the prosecution to prove that a person’s guilty, not so much that the person being accused has to prove that they are innocent.

So these are good changes. As I say, they are relatively simple only in so far as they reflect what we’ve become used to in the civilian space. So I think it’s a positive step forward.

So can I end by returning to where I started, which is thanking all of those involved, particularly our officials and advisers, those who took the opportunity to engage the committee, and to then thank the Minister for honouring the spirit of what the committee asked—that a Supplementary Order Paper be tabled and make this well in line with other legislation. With that, I commend this bill to the House.

Kia ora, Madam Assistant Speaker, kia ora koutou.

💬 Hon Stuart Nash: This’ll be better—this’ll be better.

Sorry? I just want to say the Foreign Affairs, Defence and Trade Committee’s gone along very well and the chair’s done exceedingly well—exceeded himself. But I will say, on this—and it is non-controversial, but you have go—if we’re just thinking about Minister Mark—

ASSISTANT SPEAKER (Poto Williams): Order! Order! Let’s start as we mean to go on. I know we’ve had problems in the past, but if I could encourage the member to refrain from the use of the word “you” because it brings the Speaker into the debate.

OK, thank you, Madam Assistant Speaker. In terms of what we’re talking about today, I was listening, though, to Minister Mark, and in terms of this alignment with what’s happening day to day, the armed forces had to align probably more than anyone else. What I was wanting to say is that we should mihi to the fifth Labour Government here for the changes that they decided on back between 2002 and 2006.

Things were so bad, I think, in the armed forces—and, as I said, Minister Mark talked a little bit about it, but I remember it so well, because I’ve had so many friends and family go through the armed forces and go through a legal process that was just unbelievable at times. If anything needed changing, that system needed changing, so badly that I had a friend—and I recall vividly—going through problems, I suppose having a breakdown at the time, in the mid-1980s. An officer in the army, and thrown—no legal help sought, no experts sought, just a judgment made that that this young man who was a good friend of mine must have been just mad and thrown into a mental hospital with murderers and rapists. It was shocking, absolutely shocking, and it affected him for the rest of his life and today.

That was the system that Minister Mark talks about—a system that had no aroha to their own. A system in which there was just one way—and it was their way—and that treated women very badly in the earlier years. So I mihi to what the earlier Labour Government did between 2005 and 2006. Also, in terms of the forces and how they addressed a lot of the problems with the sexual harassment that went on, the bullying that went on, Operation RESPECT was set up, and they gave some respect to some of the problems that a lot of the women had gone through in the forces. And you can only congratulate them on that work. I know some of the people who carried out the work during that time. It was the armed forces finally accepting that there was an unnecessary level of sexual harassment going on through the forces, and Operation RESPECT knocked a lot of that out and is working with that today, where we see women being promoted in the right areas, not being bullied, and the forces owning up to a level of harassment that would never be accepted in everyday life.

The previous speakers talked about a couple of areas that are very, very important in the area of victims’ rights. Those same rights need to be given to military victims of serious offences, and, of course, particularly those involved in a sexual nature. These rights need to be afforded to victims, because, in previous times, that was never the case. So I’m proud that the bill was able to address those areas, and the other one, of course, is the onus of proof aside. In terms of the onus of proof, it was particularly important that we recognise that someone does not have to prove that he or she is innocent; they have to be given the same opportunity that they are given day to day, and the onus of proof surely has to be on the prosecution.

So it was really pleasing to see that we were able to align that side of things, because a basic tenet of justice is that you’re innocent until proven guilty, rather than guilty because you’ve got an allegation raised against you. So that onus of proof, for myself, was very pleasing to see, and as a committee we worked closely together on this. There was never any real debate about things. It was good to see that both parties, both sides, were on the right track in these areas, in terms of victims’ rights and onus of proof, and I think we’re on track now to setting this up so that it can finally give some justice to people who serve our country but, for some unknown reason, in past years, have been unable to receive the same rights as everyday citizens. So I’m very pleased to support this, and I look forward to this going through the House. Kia ora, Madam Assistant Speaker.

Kia orana, Madam Assistant Speaker. This is the first call I have taken in a debate this week, so I’m wondering if you’d indulge me—just, literally, for a moment—to do two quick things.

💬 Hon Stuart Nash: Have you forgotten how to speak, Tim? Have you forgotten how to speak?

The first is, Mr Nash, that I would like to congratulate the Prime Minister and Clarke Gayford on the birth of Neve Te Aroha Ardern Gayford last week, because I think this is something that the whole country rejoiced in. I am, myself, the father of two wonderful daughters, who are my pride and joy, and I wish for the Prime Minister and Mr Gayford the same happiness. I am sure that that little girl will be deeply loved, and I look forward to meeting her at some stage when she’s brought to Wellington.

The other thing, and on a sadder note, but as the MP for Hamilton West, could I place on record my aroha and sympathy to the whānau and iwi of the late Hon Koro Wētere. I was often conscious of the fact that my electorate fits into just a tiny little piece of what he used to represent, when it was known as Western Maori. I had the privilege of meeting Koro on a few occasions, particularly at Tūrangawaewae, and always found him to be an absolute gentleman and a person of great decency and integrity.

💬 Hon Stuart Nash: He was a Labour MP!

Ha, ha! He was a Labour MP. Mr Nash, I am pleased to say that there are many Labour MPs, past and present, for whom I have great admiration, and he was one—a person who, I think, served his people with great, great integrity and decency, as I said.

Now, Madam Assistant Speaker, thank you for that. If I may now turn my attention to the Military Justice Legislation Amendment Bill, could I, as other speakers have done, acknowledge both the first Minister, the Hon Mark Mitchell, who introduced this bill, brought it to the House just before last year’s general election, when it was widely supported, and the Hon Ron Mark, who has picked it up in his current role as Minister of Defence and who is carrying it through.

I’m often surprised by how many people say to us “You politicians are always fighting and bickering and behaving like children.”, and, unfortunately, they never seem to focus on debates such as this, when, in fact, common sense, decency, and integrity prevail. Here we have a measure that is serious—

💬 Hon Andrew Little: You have to admit, it is rare!

Ha, ha! Mr Little may think it’s rare; I don’t think it’s all that rare, but I guess it depends on your perspective. The important thing, though, is that this is a serious matter and it’s being taken seriously by MPs on all sides of the House, and I commend those who have done the work. I say that because although I now have the privilege of being the deputy chair of the Foreign Affairs, Defence and Trade Committee, I only came on to the committee in March of this year, so, unfortunately, I didn’t hear the submitters who came—the four submitters, as was mentioned by the Minister earlier—to put their views forward to the committee. I did hear the summary of their evidence and the advice of officials at the end of it, and became aware of the fact that those submitters, while few in number, had made a significant impact and their views have very much been taken into account.

As I’ve said, it’s clearly a bill that is widely supported in this House, as it makes a number of significant improvements to the military justice system. The Minister and previous speakers have already drawn attention to some of its key features, such as the incorporation into the military justice system of victims’ rights under Part 3 of the Victims’ Rights Act. So I wondered if I might just mention one particular case—I’m certainly not going to mention the name of the victim, but it sometimes helps just to understand why these measures are important—and this is a case that has been in the public domain, it’s been reported by the media, so I hope I’m not being insensitive in drawing attention to it. What I’m hoping to do is to help people listening to the debate to understand why this measure is important.

This concerns the case of a woman who served as a marine engineer in the navy and, while doing so, encountered years of sexual abuse. As I say, it’s a very distressing case and that’s a very, very serious matter to have occurred, and so it is, naturally, important that we ensure that we have adequate ways for both our criminal justice and military criminal system to be able to deal with this. Sadly, it got worse: she alleges that in 2009, while she was deployed on a training exercise in Britain, she was raped by a male colleague. Her evidence to the committee, that she felt that this Military Justice Legislation Amendment Bill introduced very positive measures and was something that she widely welcomed, is, naturally, a matter that the committee has taken great note of, and is pleased to hear, as I know are those who have advised the committee, particularly as representatives from the military.

In January of this year, Stuff revealed how people convicted of crimes in a Court Martial didn’t have their convictions shown on their civilian records. I think that if you reflect on the seriousness of the crimes that we’ve been talking about and the abuses that have occurred, to find that they were protected from having that sort of offending on their record seems to be grossly unjust. After all, you would expect that anybody who was convicted of such a thing in a civilian court would have that on their record for a substantial period of time. So I mention that simply as an example of why this bill matters, why the changes that it’s making are important, why they are widely supported across both sides of the House, and I look forward to seeing this bill continue its passage through the House.

Thank you, Madam Assistant Speaker. I must say, it was with some interest that I sat on the select committee which considered this bill, the Foreign Affairs, Defence and Trade Committee. I was, of course, somewhat familiar with military justice but only in a very cursory manner. Whilst the Minister of Defence refers to those instances where soldiers have perhaps been pulled up for not having their shoes shined and the like, that, of course, is very much at the summary end, where the commanding officer will no doubt take the steps that he or she feels is appropriate and mete out some disciplinary measure. What we’re really concerned with here, though, is much more serious offending.

It is absolutely appropriate that soldiers and other military personnel have exactly the same rights as any other citizen when they are accused of what are, essentially, crimes. Having said that, it’s also important to recognise that we do need courts martial; we need separate courts to deal with these matters, for a number of reasons. Some of the crimes themselves will be military crimes—crimes like desertion—and in other situations, the crimes will occur in circumstances where the ordinary courts don’t really have jurisdiction, such as where the matter occurs overseas. Similarly, the context of these crimes makes it appropriate that in most instances they should be dealt with by military court. Having said that, there is provision within the framework for these matters to be dealt with within the ordinary courts.

One of the things that came out of this examination was the importance of the commanding officer in this overall framework, in respect of the accused having a prosecutorial role—essentially, acting as a police officer would in recognising the potential offending and making sure that due process was accorded, that prosecution was taken only proportionately and appropriately. But, also, what came out was the fact that commanding officers have an important part to play in respect of victims of crime, and, as we’ve just heard, the victims of crime in the armed forces are often armed force personnel themselves. So the commanding officer clearly has a very important function to play in protecting the welfare of those victims.

One of the really good things about this legislation, this bill, is that it brings the rights of victims into the military justice arena. So we have a framework where the commanding officer is usually the person appointed as the representative of the victim and is also able to receive information on behalf of the victim of this crime. Now, the Privacy Commissioner did raise some issues there—they were carefully considered by the committee—in terms of the victim being notified of that information before the commanding officer was, but, on balance, it was considered that the framework as set out in the legislation was appropriate. But it’s important to recognise that what this does is it makes sure that if the offender is imprisoned, then the victim has the right to be notified of things like the release on bail or release after sentence, or, indeed, escape or even the death of the convicted offender. So that runs parallel, as it should, with the civilian framework.

We’ve also heard about the onus question. The onus question is an important one, because in the civilian system it’s become very clear through case law that when a defence is raised, the defendant does not have to prove the defence. They have to raise it, they have to point to facts which may give rise to it, but the onus does not fall on them to prove, on balance of probabilities or otherwise, the elements of that defence. Rather, the onus falls on the prosecution to prove all aspects of the offending, including that there is no defence on the facts as presented.

Now, simply by dint, I guess, of history, that had diverged from military law. Military law had not kept pace with it, and it wasn’t really appropriate for that kind of uncertainty to exist in this framework. So what we have here is a tidying up of that, a making clear that the civilian law in respect of onus and defences applies as well, and hand in hand goes, as Mr Simon O’Connor was pointing out, the question of fitness to stand trial. It’s interesting to see these two pieces of legislation going through the House and the coordination that’s been necessary to make sure. But I think the outcome is a sensible one, that once Supplementary Order Paper 37 is taken note of, both pieces of legislation would have an inquiry into fitness to stand trial—first, whether or not that person is mentally capable or not, and only after that occurs would you get into the question of the facts themselves.

The other thing that this legislation does is tidy up a whole lot of other bits and pieces. It is another piece of maintenance in that regard. Notice of appointments of judges: the Chief of Defence Force doesn’t have to notify those. They’re not even appointed by the Chief of Defence, so that’s a useful tidy-up. Also, military members of tribunals—the ability to object to military members is also here in this legislation, and the ability to substitute military members to those tribunals, a little bit like a jury but, I was informed at committee, not quite—much smaller—so a few more stringent rules, perhaps, around these military tribunals. So that also is a very useful tidy-up. But it’s good to see that we do have here the two pieces of legislation coming into alignment, the two systems in alignment. I commend this bill to the House.

Thank you, Madam Assistant Speaker. It’s a pleasure to rise, perhaps only briefly, on the Military Justice Legislation Amendment Bill. It seems to me that it’s appropriate to first acknowledge those involved in the legislative process to date: the current Minister, the former Minister of Justice—

I apologise to the member. Sorry to interrupt. This debate is interrupted and is set down for resumption next sitting day. The House stands adjourned until 2 p.m. on Tuesday, 3 July 2018. Pō mārie.

Debate interrupted.

The House adjourned at 6 p.m.