Military Justice Legislation Amendment Bill

When the House was considering the Military Justice Legislation Amendment Bill last time, Chris Penk had the call. He has nine minutes and 45 seconds remaining to speak.

I look forward to resuming my contribution on the Military Justice Legislation Amendment Bill. I might take the liberty, effectively, of starting over, only having had a 15 second run-up initially—15 seconds of fame, I understand, just to tweak that slightly, is accorded to us all, but I’m going to be greedy and take just a little more to discuss this piece of legislation.

It amends, of course, the Armed Forces Discipline Act—as those who were watching with great intent and interest, no doubt, last week will recall—and also the Court Martial Act and the Court Martial Appeals Act. Before proceeding any further, I’d like to acknowledge the good women and men of the New Zealand Defence Force. They are, of course, the “Military” in the title—the Military Justice Legislation Amendment Bill—and I think it’s worth noting that the matters contained in this bill and referred to are somewhat exceptional. They’re exceptional in that the rule of the operation of the Defence Force and its fine people is, of course, very much law abiding, so these are circumstances in which we are deciding how conduct is to be regulated and determined when things are outside those bounds and an exception occurs. So that’s something I just wanted to place on the record, lest anyone listening to the debate were to gain an impression that these are more regular matters than in fact they are.

I acknowledge both Ministers involved in the passage of this bill, by which I mean the present Minister but also his predecessor, on our side of the House, at the time that we were in Government and this legislation was first contemplated. I acknowledge too the Foreign Affairs, Defence and Trade Committee, those who had been drafting the bill, and also those who have submitted on it.

There are three things I’d like to touch on briefly in the remainder of my contribution, and they relate to the things that I believe this bill does achieve pretty well. The first is that it aligns, the second is that it updates, and the third is that it strengthens. Taking each of those briefly in turn—the first is “aligns”. This bill aligns the military and the civil law, at least to some extent. The key aspect of this is that it sets out in a way that is similar—in fact, in certain respects identical—to the civilian, that is non-military, law, how we are to regard the burden of proof in a trial.

The burden of proof here relates both to the onus and the standard of proof, such that whereas currently the Armed Forces Discipline Act provides that the onus is on the accused to prove, on the balance of probabilities, any excuse, etc.—any exculpatory consideration, I believe, might be the phrase, and any Queen’s Counsel in the area will no doubt correct me if I’m wrong on that. But that onus is different in the sense that it’s not for the accused to prove that thing, but indeed for the innocent to be presumed guilty, so that will change, and also the standard of proof will be going towards “beyond reasonable doubt” as opposed to “the balance of probabilities”, which is the more normal civil standard, to use the word “civil” in a different context. So that’s a valuable thing to me, it seems, in that this bill aligns the military and the civilian justice systems.

The second thing that it does is that it “updates”. Here I refer to the fact that, actually, not the bill so much as the report back from the select committee allows an update whereby this bill will be subject to a Supplementary Order Paper to bring it into line with the general legislation that will come before the House, the Courts Matters Bill. Just by way of explanation, the select committee that was considering this bill did not know what exactly the Courts Matters Bill would look like when that came back to the House, and yet the committee, desiring that those two things would be aligned, contemplated that a Supplementary Order Paper might go in, and ensure that once the Courts Matters Bill has progressed through, that this one could be amended, effectively, to ensure that it is along similar lines. So that’s the background for that one, and that particular change that I’ve referred to will go to the question of a mentally impaired person, as defined in other legislation—whether they are fit to stand trial, that being the first thing to determine, and then to see whether they’ve in fact committed the offence, as opposed to the other way around, which is presently the case.

The third and final thing is that this bill “strengthens”. I refer to victims’ rights, which are strengthened in the case of the information that’s to be provided to them on their request. That’s set out in new section 155A, inserted into the Armed Forces Discipline Act 1971 by clause 10, a new provision that will be included in this bill; certainly, at this stage, the legislation is looking like that will be so. That’s something that we as a party support—indeed, we supported it, each of our members on the select committee.

I’ll finish by saying that the process of getting to this stage has been collegial and constructive—no doubt that will continue—and so it’s with no hesitation that I commend this bill to the House to proceed to the next stage.

Thank you, Madam Deputy Speaker. Again, it was a pleasure to sit on the Foreign Affairs, Defence and Trade Committee while we heard submissions or advice on this bill, and the lawyers among us took some pleasure in questioning the experts on some of the finer points. This, essentially, is a bill that brings the military justice system in line with the civilian justice system, and that’s important because one of the central tenets of the rule of law is that the law is clear and knowable before it applies to anyone. In this case, the discrepancies between the procedural safeguards, the standards for fitness to stand, and even victims’ rights were not in alignment and therefore, I would argue, not really knowable to those who they apply to. And that kind of discrepancy really kind of undermines the rule of law across those jurisdictions.

I would like to start by talking about the victims’ rights issues. This bill brings the military justice system in line with the 2002 Victims’ Rights Act—that’s been in application in the criminal justice system at large for some time now. Victims of certain serious sexual and violent offending have had the right to be informed about not only the application of bail but also breaches of bail, release, and escape of offenders that have offended against them in the civilian justice system; whereas in the military justice system, victims of those same types of serious offences have only had the right to be advised and to give their input on bail being granted. So, to look at that and think about it carefully, even if an offender escaped custody, victims in the military justice system were not advised. They were not advised of bail breaches, whilst they’d be consulted on whether or not bail is granted. And they’re not advised when the offender is released.

So those types of offending, when you think about the power and control dynamics and when you think about how traumatic these offences are to a victim and their whānau—when you think about that and realise that, actually, by leaving them in the dark about the release or escape or bail breaches by those offenders, we’re actually re-traumatising those victims. To find out later—to find out through seeing the offender—whether the bail breach is actually against the victim the next time it happens. It’s enormously traumatising for victims not to know and not to be involved in that process, at least by being notified. So the military justice system, thankfully, is now coming into line with what we’ve known is necessary for victims to have access to justice in the civilian system in those ways.

Next is the procedural safeguards, and I was somewhat aghast to find that the onus of proof is reversed in the military justice system, so that if charged with an offence, an accused person in the military system has to prove their innocence to a balance of probability standard; whereas in a civilian system, as we all know, the prosecution bears the onus of proof—they have to prove the charges beyond a reasonable doubt. That exists because, of course, every accused person is considered innocent until proven guilty so that fairness prevails in a criminal trial before we can sanction someone. And, I mean, it is considered incredibly serious to be convicted of any crime in any jurisdiction and to be sanctioned—for an accused person’s whole life to be affected, whether it’s through their career or through imprisonment. Where they’ve not had the benefit of presumption of innocence, it goes against, again, another central tenet of our criminal justice system. So, gladly, this bill will bring that procedural safeguard to protect those accused of criminal offending in the military justice system.

Lastly, the other important standard that’s being adopted in this bill, through the civilian system, is the standard of requiring two expert psychiatric reports before someone is, essentially, declared or considered unfit to stand trial. In the criminal context, “unfit to stand trial” means that someone has proven that they suffer from a disease of the mind that renders them unable to know the nature and quality of their actions. So it’s a very high standard, and this will require the same procedural framework as in the civilian system, where we have two psychiatric reports before that’s proven. And that, again, is something that’s important for consistency and sort of clarity of our law where someone’s being sanctioned or, indeed, being excluded from ordinary criminal sanction.

So I am very happy today to commend this bill to the House, because I was so shocked at the complete lack of consistency between these two criminal justice systems for, essentially, no clear reason. But our law is, after the passing of this bill, going to be far more consistent and logical across those two jurisdictions, so I’m glad to commend this bill to the House.

Thank you, Madam Assistant Speaker. So, look, it’s a privilege to take a call on the second reading, now, of this Military Justice Legislation Amendment Bill, following on from the call I took in the first reading. It’s great to have seen this progress and the recommendations we have received off the back of that. Fundamentally, we’re talking about alignment—looking to align more closely the military justice system with the New Zealand civilian criminal justice system.

There’s a number of aspects in this that have already been touched on tonight that are in need of an update because there has been disparity between these two different justice systems. I would like to acknowledge, of course, that there are some unique aspects of the military justice system that are not applicable in a civilian setting. One quick example that springs to mind is “UAD”, as it’s called in the army—an unauthorised discharge—where a weapon is inadvertently discharged during the course of any operations or training without the intent to have done so. Now, of course, that ranges on a spectrum, and within that, this would not, necessarily, be one of the most serious offences but is an example of something that is specifically unique to a military environment. And, of course, there are numerous examples of how that can happen, whether it is inadvertent, through an inability to conduct the correct drills with your weapon system, or through, perhaps, a miscarriage of that weapon system throughout the training procedures you’re in. These things can happen from time to time, and that is an appropriate element that needs to be captured in the military justice setting but, of course, is not applicable to the civilian or mainstream criminal justice setting.

Now, before I carry on, I would also like to acknowledge the fine members of the New Zealand Defence Force: those men and women who, every day, put on their uniform and perform their duties to the best of their ability on behalf of our country. I’d also like to echo the comments made by Chris Penk, highlighting that, whilst we’re talking here tonight about amendments to this military justice legislation, it by no means suggests or indicates there is a high level of use for this particular piece of legislation. Indeed, it captures those very few scenarios that we have to have an appropriate set of laws in place for, but, by and large, the conduct within our defence forces is exemplary, and so I’d like to commend them on that as well as their service.

There are a couple of key aspects that I want to highlight in particular, and one is the victim’s rights. And we’ve heard extensively about that from the previous speaker, Golriz Ghahraman, from the Green Party. That’s a really important aspect and we need to make these updates to bring these into line with civilian law and provide better support for those victims or confidence around knowledge or information, in particular. One of the reasons I think that is of particular importance is that any victim needs to be supported, of course, but in this system, typically, victims—and I’m a very passionate supporter of the defence forces, and anyone who has committed to being a part of that, I believe, is going above and beyond in their service, whether they get offshore or not, and should indeed be extended additional victims’ rights to ensure that they are being supported in every manner possible, given what they have done or offered to do for their country. So it’s great to see some improvements being made in that space. Onus of proof, as well, of course: an important change here to make sure that we are bringing that into line. Changing that onus of proof from the defence to the prosecution is an important and relevant change to make across these pieces of legislation, as well.

Another aspect I do want to touch on, which hasn’t been widely traversed tonight, is fitness to stand trial, and that, for me, is one particular area that we, I think, are still learning a lot more about. When you look at some of the mental wellness issues that have presented over time in military settings, and in any manner of settings as well, it’s important to note that we have perhaps not had an appropriate or advanced understanding of those issues to the level that we might desire or have now, if we were to reflect on some of those decisions made previously. So this is a great way to acknowledge that we do need to take greater account of those particular impacts that are not necessarily visible on the victims or the perpetrators of these crimes as well. So that’s one area I’d just like to finish on, and I commend this bill. Thank you.

I understand this is a split call. Dr Liz Craig—five minutes.

Thank you, Madam Assistant Speaker. It’s a pleasure to take a call on this bill. While it’s actually quite a non-controversial bill, I think it’s really, really important in terms of what it does for those serving in the armed forces. What it does is it makes sure that the victims of serious offences of a sexual or violent nature get the same rights as they would in the civilian justice system, and that’s absolutely crucial because I think experiencing these things as a victim is the same wherever you are in terms of your workplace.

One of the rights—the right to be consulted on the accused’s release from bail—is actually in the military justice system already, but there’s a whole lot of other things that we’ve talked about tonight that actually aren’t. So what this bill does is it adds a whole new lot of things and rights for victims, and it adds a new section to the Armed Forces Discipline Act 1971. While the onus is still on the Director of Military Prosecutions to consult the victim when they’re talking about whether the offender should be released on bail, it adds a whole lot of other things in terms of informing those victims and keeping them in touch with what’s happening with the process.

Some of the important ones are actually informing the victim if the accused or the offender is indeed released on bail, because I think that has a whole lot of safety and security issues for those victims, and, if they are released, informing the victim if there’s any conditions about the release that are to do with the safety of them or their family, and, in particular, things like any conditions about the accused not actually contacting them or members of their family. Also, if the offender does breach these conditions, making sure that the victim is aware of that, plus also if the accused escapes or the offender dies in custody—being aware of those things is crucially important.

What research suggests is that if you are a victim of a violent crime, then you experience further trauma if you’re not kept fully informed and up to date with what’s happening and taken through the process about what’s happening now and why. But, in contrast, if you are informed, if your views are taken into account, and if you’re consulted, it can have significant therapeutic effects for the victim and it can also help with their recovery. I think it’s also got other spillover effects, because if other people who are thinking about potentially stepping forward with their own experiences see other victims having good experiences in terms of being kept up to date and knowing what’s going on, they may be more likely to actually step up themselves and engage in a process. I think some of this is the culture change. When the National Council of Women submitted in support of this bill, they were thinking about some of those effects in terms of what’s happening in our military system at the moment.

So, just to sum up, I think ensuring the victims of serious crimes receive the same rights in the military courts as they do in the civilian courts is really, really crucial because it will ensure better outcomes for the victims in our armed forces. So I, therefore, commend this bill to the House.

It’s a real pleasure to speak on the Military Justice Legislation Amendment Bill in its second reading. First of all, I’d like to acknowledge and welcome to the “class of 2017” our newest MP, Dan Bidois, who made an exceptional maiden statement a couple of hours ago. I think he’s going to be a great MP.

I’d like to acknowledge the Hon Mark Mitchell for bringing this bill to the House, and I’d like to acknowledge the Hon Ron Mark for taking it through the House. It’s an omnibus bill. The purpose of this bill is to update the military justice system and to align it with the criminal justice system in certain respects, including enhancing victims’ rights. It amends the Armed Forces Discipline Act 1971, the Court Martial Act 2007, and the Court Martial Appeals Act 1953.

I’ve got a bit of experience with the criminal justice system—

💬 Hon Kris Faafoi: How long have you got? You’ve only got 10 minutes.

Remember that interjections are meant to be witty—that’s what the Speaker said. I am particularly interested in victims’ rights, based on my time as a police detective. I felt that the victim had no rights and that everything was weighted towards the offender. I can recall many times while I was taking a serious sexual offence case through the court process, it felt like it was myself and the poor victim against the rest. So I’m really interested in anything that progresses victims’ rights. Many times I felt that it was wrong and many times I felt like chucking it in. Eventually, that’s why I left the police. I felt a little burnt out, and I felt someone else could pick up the load. Thankfully, times are changing and good law is being made to address these issues.

Part 3 of the Victim’s Rights Act 2002 confers rights on the victims of certain serious offences of a sexual nature or that involve violence: the right to be kept informed, to be consulted, and, most importantly, to have their views taken into account in respect of decisions around bail. So this legislation seeks to align victims’ rights and protections in the military justice system with those in the criminal justice system.

This bill also amends some aspects of the procedures of the Court Martial of New Zealand. This bill aligns provisions governing whether an accused is unfit to stand in the military justice system and steps associated with that determination with the provisions of the Criminal Procedures (Mentally Impaired Persons) Act 2003.

It cleans up some procedural issues relating to courts martial. A key improvement, in my view, is the change to the onus of proof. I understand that, under the Armed Forces Discipline Act, the onus is on the accused to prove, on the balance of probabilities, any excuse, exception, exemption, or qualification that the accused relies on as a defence to a charge. Provisions placing the onus of proof on the accused have largely been removed from the criminal justice system following the decision of the Supreme Court in R v Hansen in 2007. There is no good reason for members of the armed forces who are tried under the military justice system to have an onus of proof imposed on them that is not imposed in the criminal justice system. Accordingly, the bill repeals section 3(2) of the Armed Forces Discipline Act 1971.

This, along with the improvements to victims’ rights, in my view, are the most important changes in this bill. Accordingly, I commend this bill to the House.

Before I call the next member, I just want to encourage members who have been in the House for several months now that it’s the expectation that members will not read speeches and that, when they are in the debating chamber, they will actually deliver arguments from notes only. So this is the last time I’m going to mention it. Next time, I will be stopping members from reading speeches, except for our newest member, who arrived in the House today.

Tēnā koe e Te Māngai o Te Whare. Tēnā koutou katoa. It’s my pleasure to speak on this, the second reading of the Military Justice Legislation Amendment Bill, as a member of the Foreign Affairs, Defence and Trade Committee.

I just want to highlight one aspect of this bill, actually, and it’s the matter of principle that this Government believes that the military justice system should grant to our armed forces personnel the same rights enjoyed by civilians in the criminal justice system. So, in wondering why we would state that, which is the intention of this piece of legislation, I found some international research, and it is by Arne Willy Dahl from the University of Oslo. It was published in 2011, and it’s called International trends in Military Justice.

The interesting thing in all of this actually stems from a European Court of Human Rights case called Findlay v the United Kingdom, dated 25 February 1997. Essentially, it was a challenge to the independence and impartiality of the court martial system, and a challenge to the UK Army Act of 1955. In this particular case—and I think we all should know where the history of philosophies come from and changes come from. But in this case, the governing officer who played a central role actually decided what the charges were. He convened the court martial. He appointed the members and the prosecuting and defending officers. All military personnel were subordinate to his rank as convening officer. And so this whole human rights case in the European Court of Human Rights was about conflicts of interest, power, and the military actually having a system that did not uphold this individual’s rights as a civilian. So if he’d gone through a civilian court—obviously, we’d take care of conflicts of interest. We make sure that people are adequately represented. There’s fairness and justice in the system.

And so the reason I highlight that is because it seems that all the changes in the military justice system aligning the military justice system—and it actually has gone through several iterations. From courts martial convened for individual cases, standing military courts, specialised civilian courts, general civilian courts in peacetime, to now, which is kind of like this intersection between a stand-alone military and our—what I would call a normal and ordinary court system, but the coming together of those to uphold these principles, which is that people deserve the right to be heard, to be represented in a fair and just way. But also, central to everything we do now is putting victims at the centre of a criminal justice system where we’re innocent until we’re proven guilty.

And so this piece of legislation that has gone through the Foreign Affairs, Defence and Trade Committee actually made no recommendations, but with a caveat that there does have to be a cross-reference between our legislation and the Courts Matters Bill that is going through this Parliament at the same time, so there may be a Supplementary Order Paper introduced by the Minister at committee stage. We’re fully aware of it as a committee. So I won’t speak any longer, other than to commend the bill to the House. Kia ora.

Thank you. Look, I stand to attention to take this call on the second reading, and I’m grateful that I’m able to address the House again—because I did in the first reading—on this Military Justice Legislation Amendment Bill. I’m grateful because of the fact that I do have a connection, personally and professionally, in speaking to this legislation: professionally, having practised law, and this is a piece of legislation, proposed law, soon to be passed—I am confident that it will be—where there is a better alignment of the military justice system with, as my friend across the House there, Ms Louisa Wall, mentioned, a “normal” court or a “usual” court; I would say that it’s our criminal justice system. So it’s an alignment, and the purpose of this legislation is around aligning, updating, and enhancing.

The other personal connection that I have is very much, as I’ve indicated and shared with the House before, my military background. My family has given military service since the 1850s through to date; so this is quite personal, but it’s also professional in being able to address the House and members of the public in this reformation—reshaping—of the military justice legislative system.

Being the last speaker, most of the significant messages have been conveyed to the House and the public, and my time is limited. I’d be grateful, Madam Assistant Speaker, for you to keep a check on my time, because I’ve just lost it on my phone.

ASSISTANT SPEAKER (Poto Williams): You can be assured I will. You have eight minutes and 22 seconds left.

Thank you. I’m taking a brief call on this, but the three key areas that I would wish to address the House on are really along the lines of the areas that I have practised in. One is around victims’ rights, and this legislation is certainly acknowledging and enhancing victims’ rights under the bill—the Act to be. It’s also, as we’ve heard, around repealing a provision in the Armed Forces Discipline Act that has placed the onus of proof on the accused. Now, this is reshaping and aligning it with our criminal justice system so that the onus of proof is on the prosecution and no longer will it be just on the “balance of probabilities”; it will be “beyond a reasonable doubt”. That’s so significant and important.

So victims’ rights there have been addressed in detail, and that is covered specifically in the bill itself, in new Part 10A, in clause 19, outlining, for example, victims’ rights; having views about release on bail of the accused or the offender. As a criminal lawyer for many years—also a family lawyer, actually—representing many women and sometimes men who were victims of domestic violence, they are entitled to be enlightened about what is happening in terms of the offender and the conditions that they may be released on bail under. New Part 10A of the bill, soon to be Act, addresses that in detail.

The other part that I do wish also to speak to—and I mentioned it in the first address to the House—is the provision of fitness to stand trial. So the bill is aligning where an accused is deemed to be unfit to stand trial—and noting also that, under the Courts Matters Bill, it is seeking to amend the Criminal Procedure (Mentally Impaired Persons) Act, where I’ve represented, and there’s been the fact that a hearing had to take place to establish whether a person was unfit or otherwise before it was deemed that the act had been committed or omitted. So this is very much aligning, and with an amendment to the bill before the Justice Committee, I believe, there will be a reversal of the sequence. So it will be very much about first determining whether the person who has a mental impairment is fit to stand trial, then determining whether the defendant was actually involved in the commission or the omission of the offence.

I have been instructed to take a brief call on this. The details are there within the bill. I have spoken and addressed those particular provisions that I’ve practised in law, and it’s significant now that the military justice system be aligned and in accord with what everybody else is entitled to, in terms of our criminal justice system. I commend this bill to the third passage of the reading. Kia ora.

Kia orana, e Te Māngai. It’s an absolute privilege to take the last call on the second reading of the Military Justice Legislation Amendment Bill.

We’ve been in the House now for a while, and we’ve heard members speak on how collegial it’s been and how we can all work together in this House. There is one thing that I’d like to bring to members’ attention, which is that the men and women—in fact, all genders—of the military, of the Defence Force, take the Oath of Allegiance just like we do, just like members of Parliament do, but the difference is that the men and women and all genders who are in the armed forces are there to lay their lives on the line to defend this nation we call Aotearoa New Zealand. So it is only fair that a justice system is provided to ensure that all behaviours conducted in the forces are fair and integral in terms of the men and women who have chosen to give their service, their lives if they have to, to defend this country. Like all the other members of this House, I want to acknowledge the honour that those members of our society have chosen to take on our behalf.

I believe that the amendments actually make sense, and I believe that these amendments are exactly about this: they are about justice and they are about fairness of behaviours expected of everybody that serves our country. I’m not a member of the Foreign Affairs, Defence and Trade Committee, but I am a person who subs into most committees.

I want to conclude by reading a caution from the National Council of Women of New Zealand, where they said that although they agree with the bill, they “have reservations about possible conflicts of interest …”, and if the select committee can take note of the last paragraph of the select committee evidence provided by the National Council of Women of New Zealand. Other than that, all members have actually covered most points, and I’d like to commend this bill to the House. Malo.

Bill read a second time.