Visiting Forces Bill — Second Reading 
Visiting Forces Bill — Second Reading 
[Volume:617;Page:12813] 
Visiting Forces Bill 
Second Reading 
Hon MARK BURTON (Minister of Defence) 
: 
 I move  
That the Visiting Forces Bill be now read a second time 
. This bill which is the outcome of a lengthy policy development process will repeal and replace the Visiting Forces Act of 1939 and both rectifies deficiencies in the present law and updates and amends the law relating to visiting armed forces to reflect established international practice. Importantly it will permit New Zealand to ratify its status of forces agreement with Australia and it will contribute to the enhancement of New Zealand’s international defence and security relationships by providing a clearer and more comprehensive legislative basis for the acceptance of visiting forces to New Zealand. It will minimise the possibility of future problems in New Zealand’s relationship with States sending forces to our country by reducing the prospect of misunderstandings surrounding the status rights and obligations of forces visiting New Zealand. 
The bill was referred to the Foreign Affairs Defence and Trade Committee last November. Only one submission was received which was from the New Zealand Law Society. The Law Society took the view that clause 8 as drafted which dealt with the question of when a visiting force can exercise jurisdiction over its own personnel in New Zealand suggested that without a status of forces agreement such jurisdiction could not be exercised. The committee has recommended that clause 8 be amended to provide for restricted jurisdiction by visiting forces over a limited range of offences that do not involve the persons or property of New Zealanders if there is no status of forces agreement. This is agreed to. 
The Law Society made a further comment that clause 15 lacked precision as drafted. Clause 15 provides that the proceedings of a service tribunal of a visiting force may not be called into question in any proceedings before a New Zealand court. The purpose of this clause is to oust the jurisdiction of the New Zealand courts in respect of these matters. The problem noted by the Law Society was that the purpose and scope of the clause were unclear. The committee was advised by the New Zealand Defence Force that under the bill it was intended that nothing done by the service authorities of a visiting force in the exercise of its criminal and disciplinary jurisdiction should be called into question in a New Zealand court. Such acts are covered by the international law doctrine of sovereign immunity and if the New Zealand Government was offended by a particular exercise of the visiting force’s jurisdiction that would be dealt with as a diplomatic matter between the New Zealand Government and the Government of the relevant sending State. The committee has recommended an amendment to clause 15 to clarify this position. Again the select committee’s recommendation is agreed to by the Government. 
The committee has recommended two further amendments based on the advice of officials that I will briefly mention both of which are agreed to. One is a minor textual amendment to clause 4 that is consequential to the amendment to clause 8. The other is the amendment to clause 24 to provide that the bill will not be in force in Tokelau and it has been inserted following diplomatic discussions with the representatives of those islands. I therefore foreshadow that a small Supplementary Order Paper containing minor further amendments in order to correct cross-references to other parts of the bill and other statutes will be introduced. 
As I said on introducing this bill the bill is also important for reasons of international reciprocity. New Zealand expects its deployed forces to be afforded the privileges including certain immunities from local jurisdiction that visiting forces customarily have under international law. Those are among the matters contained in the status of forces agreement negotiated with the States to which the New Zealand Defence Force deploys and with which this country has defence relationships. Negotiation of such agreements will be made less difficult by New Zealand’s law allowing similar privileges and immunities for the forces of such States when they visit New Zealand. 
I want to thank the Foreign Affairs Defence and Trade Committee for the excellent work that it has done and the unanimous recommendations that it has made on this worthy measure. I also want to thank the New Zealand Law Society for its careful scrutiny of the bill and valuable contribution. The bill is the better for its attention. 
The bill as amended will play an important role in enhancing New Zealand’s capacity to engage as a valued member of the international community by bringing law that has been in place since the outbreak of World War II into line with contemporary international law and practice. It will play a particularly important part in facilitating the next step in New Zealand’s closer defence relations with Australia—the ratification of our status of forces agreement. I commend this bill to the House. 
Dr WAYNE MAPP (National—North Shore) 
: 
 Perhaps the last comment by the Minister said it all. This bill is primarily motivated by the need to implement in our domestic law the status of forces agreement with Australia. It is worth noting that that agreement comes from 1998 so we are now 6 years down the track. 
As the Minister said accurately Australia is our most important defence partner. Obviously Australia is not just our defence partner but our most important partner in so many things—trade interchange of people. Australia is our closest partner so one would think that a Government that was concerned about the quality of the relationship with Australia particularly these days when our own region is—I think everyone would acknowledge—somewhat more unstable than it used to be would have dealt with this issue with some degree of urgency rather than waiting 6 years. 
Hon Mark Burton 
: National was the Government. 
Dr WAYNE MAPP 
: The Minister says National was the Government. This Government has now been in office for nearly 5 years. That is time enough I would suggest for any Government that is serious about the relationship to act more quickly. 
What this bill reminds one of of course is the quality and nature of that relationship. We know it has been under stress and strain. The Minister was in the uncomfortable position late last year and earlier this year of having to answer questions about our deployments to the Solomons. Were we sending a company? Were we not sending a company? Did Australia have to actively ask? The reality is that the New Zealand Government had to be prodded into action because the Australian Government had seen inaction on the part of this Government. It goes further than that of course. That issue was just a minor symptom one might say of a deeper deterioration in the relationship. 
I think every New Zealander who takes an interest in these issues will know that there has been tension in the regional security relationship for a number of years. Frankly New Zealand has not been pulling its weight so now we are in the unfortunate position of being the supplicant—always the supplicant—because of the Government’s neglect of a fundamental obligation concerning defence. 
Members will be surprised to learn that defence expenditure is now 0.8 percent of GDP assessed internationally. The Minister sighs but he knows that is the truth. He does not even interject to rebut it because he knows it is true. When compared to our friend Australia our closest ally which is spending 2 percent of GDP it is not surprising that we are seen not to be making the effort. The reality is that the deployment to East Timor—another example of regional cooperation—stretched our defence forces and I believe the Government would acknowledge that. 
What has the Government done? Has it increased the size of the Army? Has it introduced three battalions? Has it ordered a third frigate? It has done none of those things and the answer is no. 
Hon Mark Burton 
: Who cancelled the frigates? 
Dr WAYNE MAPP 
: The Minister doth protest but I just need to remind him of the photograph from last year. Our entire Navy was in the Gulf of Oman 12000 miles away from New Zealand. Not a single major vessel was stationed to protect our region which is unstable. The Minster might be distressed to know these facts. I guess he has not been dealing with them satisfactorily. 
I say to Government members that when they come to this House having produced a bill as important as this about the relationship and it has had 6 years to do so members on this side of the House can only conclude that the Government is not taking the relationship seriously. I want to put those things on record because they are important. The net effect is that New Zealand has now been surrendering leadership entirely to Australia. 
There was a time when we used to do things in partnership with Australia; our voice really counted. But this Government firstly has run down the Defence Force and secondly has not played a full role in the politics of the situation and in the relationship issues. We are now getting continuing statements of concern from Canberra and this Government remains silent. It has lost the sense of participation of leadership of some kind of joint enterprise. That is a very telling feature. Surely this country would always expect to be a co-leader within our region to be working in a joint enterprise with Australia as opposed to being the distant junior partner which is where we have been relegated. 
It is all very well for the Government to introduce bills such as this but what members on this side of the House and the country want to see is this Government taking a serious approach to defence and regional issues so that we are seen to be working alongside our Australian partners in a true partnership that embodies the spirit of the Anzac tradition. 
Hon JOHN TAMIHERE (Minister of Youth Affairs) 
: 
 I commend the second reading of the Visiting Forces Bill to the House. In doing so I want to observe a number of points made by the previous speaker. We on this side of the House are absolutely intrigued as to why the failed defence spokesperson—no longer the defence spokesperson for National—led a debate started by the Minister of Defence. We on this side of the House are going to invite “Mr Simon Nuclear Powers” to stand and take a call with regard to— 
Simon Power 
: I raise a point of order Mr Speaker. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I know what the member is going to raise. 
Simon Power 
: I believe there is a Standing Order about referring to members by their proper titles or names. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: It is not a Standing Order. It is Speakers’ rulings 26/7 and 26/8. May I suggest that the member have a look at them. 
Hon JOHN TAMIHERE 
: We will invite the member Simon Power the real defence spokesperson for the National Party—not Dr Wayne Mapp—to take a call. We have just heard a speech from Dr Wayne Mapp and we now know why he is the failed defence spokesperson. But we would like to hear from the real National Party defence spokesperson as to whether visiting forces will be allowed into this country; if so under what category and criteria. 
The failed defence spokesperson failed to tell the House that this Government has not been in business for 6 years although most of the country would desperately desire that. It has actually been 4½ years—leading on to 4½ years—so we have to get the facts right as well. We will invite the real defence spokesperson for the National Party to take the next call to clarify its position and tell us exactly what it would do with regard to this bill. Would the National Party change the bill? Would it do anything to make it better? Let us have a proper conversation and a proper debate. 
Will he acknowledge that the Minister of Defence will be acknowledged as one of the best defence Ministers in recalibrating our defence requirements as a very necessary part of the whole role we must play in our region? Will he note quite clearly that we do not have the fiscal capability to buy the type of equipment he might invite us to buy? I would like to ask him where the National Party might get the money from. 
So we need some clarity. We need some people to get real about exactly what we are doing in the defence area. We would like to know what visiting forces would be allowed here. We would like to know exactly what the National Party’s defence settings are. We would like to know; the country would like to know. We would like to commend the second reading of this bill to the House. 
DAIL JONES (NZ First) 
: 
 I note the enthusiasm of other members including Mr Simon Power to take a call but knowing the way in which procedures work I am only too pleased to accept the fact that New Zealand First is now to take the call. 
The previous Labour Minister who spoke wanted to know quite a few things and members of this House would like to know why it is that the Labour Prime Minister wishes to release confidential notes of important defence discussions held between the Leader of the National Opposition and representatives of the United States. If we are asking in order to find out about various things we could ask on what basis this Labour Government breaches long-time conventions and discloses confidential discussions. That would be a very interesting thing to find out. We will all be looking forward to the release of the total sum of documents when Mr Goff finally comes back to New Zealand and we will see whether he decides to release that information. 
Of course it takes quite a bit of cheek on the part of the previous speaker Mr Tamihere to speak on defence. He is the person who wants to see the Royal New Zealand Air Force base in Whenuapai closed down and replaced by a commercial airport with no regard for the people in the Whenuapai area. He is the person who is willing to see defence run down—absolutely entirely. He is the person who wants to see all our defence personnel located in one spot at Ohakea in the central North Island so that if anyone ever wanted to take out the New Zealand Defence Force there would be only one place to have a go at which would be Ohakea. Most people who have any idea about defence would believe that defence personnel should be located at two places at least rather than at one place thus letting everyone have just one shot—which is Mr Tamihere’s viewpoint expressed by the relocation at Ohakea. 
Of course what Mr Tamihere supports is the Quigley report which was put together by the National Party and the Labour Party and which is something that New Zealand First views with a great deal of disapproval. We want to see defence improved and we want to see more money spent on defence. I take the point raised in Mr Tamihere’s speech when he asked where the money would come from. We have never been so well off in New Zealand as we are today yet in the past we were able to find the money to have new Orions new Hercules craft and new Skyhawks. Now there is absolutely very little in the air at all and nothing new. There are a few helicopters but of course they cannot reach the ships on which they are supposed to be based when they come into New Zealand because the helicopters are in Auckland and the ships are further south. That is quite a disaster in defence terms in so far as the Labour Party is concerned. 
We have seen defence run down under successive Labour and National Governments but New Zealand First which was congratulated on its defence policy at the last election will be ensuring that the defence policy is even better at the next election and that defence will be improved as a result of a New Zealand First Party being in Government. Of course all of that has very little to do with this bill. The debate has wandered far and wide with the support of the House so I felt I should take a few moments to refer to those points 
The Visiting Forces Bill has the unanimous approval I believe of the Foreign Affairs Defence and Trade Committee. We appreciate the efforts made by the New Zealand Law Society in making suggestions for amendments to the bill and by and large those amendments have been accepted. This bill will update New Zealand’s law in relation to visiting forces by amending the provisions of the original Visiting Forces Act that has been in place since the outset of World War II. That will mean that New Zealand’s law in this regard is consistent with international law and practice relating to status of forces agreements concluded with other States. Specifically it will allow the status of forces agreement negotiated with Australia in 1998 to be finally ratified. 
This Government has been in power since 1999 and this bill is a simple little bill so it shows how little the Government cares for defence that a small bill like this—which did not take terribly long to draft and which will not take terribly long in this House—should have taken so long. The Labour Government came into power in 1999. The bill was probably sitting around in draft form then and 5 years later it is only just getting to this stage. The bill took only 1 hour and 55 minutes to be considered before the select committee. One would have thought that the Government if it had any regard for defence would have brought this matter to the House before today. The Government really has little regard for defence at all. It pays lip service to it and does an inadequate amount in so far as improving our defence capabilities. As far as the bill itself is concerned New Zealand First supports it. 
KEITH LOCKE (Green) 
: 
 The Green Party is supporting this bill which deals with the practical matters of how visiting forces to our country or our forces going to other countries conduct their affairs in order to have a degree of autonomy. It introduces certain cautions into arrangements made in that we do not want injustices done to those who are members of a visiting force or to New Zealanders and their property if that property is affected by activities of members from a visiting force. I think the way this bill is constructed is good. It is a base document upon which other status of forces agreements are constructed. In the base document most of the jurisdiction goes back to our country rather than is delegated to the visiting force except when there are issues between members of the visiting force that do not affect the people or property of New Zealand. 
The Minister in his speech talked about recognising what he called the sovereign immunity of the visiting force. I think that although we accept that sovereign immunity it does not mean that a country like New Zealand can wash its hands of injustices if they occur in terms of the processes of the visiting force. It is more a question of how those injustices are handled and as the Minister said those injustices are not handled so much by reference to a New Zealand court or by a New Zealand court superseding the internal proceedings of the visiting force as by negotiations between the New Zealand Government and the visiting force if we see that problems have arisen. The Foreign Affairs Defence and Trade Committee of which I am a member said in its report that in an extreme case the Government could insist that the sending State withdrew its forces from New Zealand. 
I want to go a little bit into what problems could possibly arise in that respect. I can see about three of them. One is in terms of the penalty imposed by the visiting force against one of its members. There is a particular provision—an aspect of penalty—in the bill under clause 9(1) which states: “The service authorities of a visiting force must not—(a) impose or carry out a sentence of death in New Zealand;”. I think that that is very important because we as a country are very much against the death penalty. There could be a little problem there though or it could be quite a big problem for the person concerned in that while that provision prevents a sentence of death being imposed on the said offender in New Zealand that person could be whipped off back to China or some country such as that and be subject to the death penalty there. That is something we would have to watch very clearly and it could result in terminating that relationship with the visiting force. I think that that would be a severe breach of province. There could be other problems and I mention China and Singapore. Some countries have very harsh penalties and we would have to see whether they were being imposed in a way we would object to if they were offences effectively being committed on our territory. 
The second problem could be one of due process as I said. The bill envisages that one cannot appeal to a New Zealand court if it is a question of issues within the visiting force. But again we do have countries such as China and other countries like that which do not have particularly good due process. The Singaporean Government often does not process people through courts but it has an Internal Security Act. There are a lot of people languishing in its jails who have never been brought before a court. They have been there for years under that Internal Security Act. Many of the people in the so-called war against terrorism—I think all of them actually—who were detained up to about 3 or more years ago are sitting in jail. None of them have been processed for supposed terrorist charges. So there is a problem of due process in terms of visiting forces. One force could be the Singapore military force which has come to New Zealand sometimes for short periods of training in Waiouru etc. 
The third problem I can see is the possible mistreatment of those charged and detained in the visiting force while in New Zealand. A specific provision in the bill relates to an aspect of that. Clause 9(1)(b) states that the service authorities of a visiting force must not “do any act in New Zealand that would if done by a member of the Armed Forces of New Zealand constitute an offence against the Crimes of Torture Act 1989.” That unfortunately has a certain relevance right at this moment with the exposure of the systematic problems of in effect torture by American and British forces of people in Iraq. It is a whole systematic problem of abuse be it a combination of verbal abuse humiliation strippings etc. and including beatings. So there is that problem and we would have to make sure if there were a visiting force from for example the United States or Britain that its officers did not bring those practices to New Zealand in terms of their treatment of people serving in that visiting force. We would have to make sure they applied the proper provisions and did not descend into what could in some respects be seen as torture in their relationships. What seems to be happening in Iraq today as well as just a sort of revenge approach of beating up prisoners etc. is a whole strategy of how to get people to talk. That has originated from US military intelligence in particular but also includes British military intelligence personnel. They have been involved in some of the interrogations at the Abu Ghraibprison. The way one gets people to talk is to abuse them seriously. In effect one tortures them by sleep deprivation humiliates them and reduces their resistance to spilling the beans through that manner of abuse or one makes them live in fear through beatings. So there is that problem that could apply to a visiting force. 
I have said that where such problems exist they should be dealt with by negotiation. If there are serious problems we might have to suspend that military relationship whereby a particular visiting force comes to this country. Of course the bill contains a provision that the New Zealand Bill of Rights Act will apply to any New Zealander who is affected by a relationship with the visiting force. No New Zealanders who may be contract workers or whatever for a visiting force would escape the jurisdiction of our New Zealand Bill of Rights Act and our due process. 
One other little problem is not really mentioned in the bill but it can be a big problem for certain people. It has applied I think to the longstanding visiting American force in Christchurch and involves situations whereby New Zealand women become pregnant to members of a visiting force and paternity suits and things like that ensue. Such cases are covered only under civil law and there have been some complaints in terms of pursuing civil cases against former members of the visiting force back into the United States. The bill does not specifically cover that situation but it is something to bear in mind when we deal with this general problem of visiting forces. 
Hon KEN SHIRLEY (Deputy Leader—ACT) 
: 
 The ACT party will be supporting this bill. We note the international reciprocity agreements that are provided here with the status of forces agreement. The question that needs to be put to this Government is why it has taken so long. I was somewhat stunned to learn that we negotiated and completed an agreement with Australia in 1998 but that it has not been able to be ratified because this legislation has not yet been passed. In other words this Government has taken the whole length of its regime some 5 years to get around to passing this quite important legislation. That is a reflection of this Government’s total lack of commitment to the armed forces. 
These sorts of agreements are important for military personnel. The sad thing though is that New Zealand does not actually cooperate and train enough with other armed forces and not enough of them come here to share their skills their wisdom and their experience—that mutual benefit of exchange. New Zealand has become the leper of this region in terms of participation in military cooperation. We have reneged on our traditional allies time and time again. This Government seems to wear that unfortunate situation as some form of perverted badge of honour and that is very sad. 
Much of this debate so far has been preoccupied with the hardware of the military. I always think that is unfortunate. Too often military strategic debates degenerate into what sort of hardware to buy—this ship that tank this light armoured vehicle or whatever. The situation with our military strategic defence positioning is a political failure rather than any hardware failure. Politically this Government—and previous Governments too—have failed to identify a clear strategic direction for our armed forces. There is no point in engaging in detailed hardware debates about what sort of ships guns or tanks to buy if we do not know what we are buying them for. That is the problem. There has been no clear mission plan or strategic direction for our military personnel. The key point is that we must get the strategy right. 
The second point is the importance of personnel. Again when we bury ourselves in hardware debates we are actually jumping over the key point of the armed services—that is the calibre the quality and the morale of the personnel. Again the morale of our armed forces has been run down to rock bottom and that is deeply regrettable. 
The ACT party supports this important legislation but the point needs to be restated that the Government has taken far too long to bring it to the House. It is not as if it is complicated. I understand that the Foreign Affairs Defence and Trade Committee spent about 3 hours on the bill yet the Government has taken 5 years to advance it to this stage. That simply is not good enough and it is a clear reflection of the Government’s lack of commitment. 
Hon PETER DUNNE (Leader—United Future) 
: 
 I tell the member who has just resumed his seat that the Foreign Affairs Defence and Trade Committee took 1 hour and 55 minutes to consider this bill. It is very straightforward legislation. 
Lianne Dalziel 
: Good chairing. 
Hon PETER DUNNE 
: Absolutely and I thank the member for that comment. The bill replaces the Visiting Forces Act which was passed in 1939. So it is a little churlish I suggest to be critical of the failure of this particular Government to implement expeditiously an agreement that was signed some 59 years later in 1998 whereas this legislation actually replaces an Act that was passed 65 years ago at the advent of World War II. Whatever else has changed in the world in the last 65 years it is certainly true that the conditions under which the original Visiting Forces Act was passed have long since changed. 
 In fact 65 years ago Michael Joseph Savage was sitting on those benches over there. I am not sure what he said but it would have been profound and inspirational. It is interesting that he did make the comment: “Where Britain goes we go; where she stands we stand.” The really interesting thing about Michael Joseph Savage’s comment in 1939 because today it has been interpreted as being simply acquiescence was that at the time it was seen as the height of effrontery. For the first time a dominion of the British Empire was staking out a position independent from the empire Government in London. That phrase today is seen as a sort of blind adherence to Britain but at the time New Zealand was the only dominion of the then Empire to state a position separate from the British position at the outbreak of World War II. Those who try to draw parallels with a similar comment made this week miss the point completely. 
This bill is straightforward but I want to pick up on a comment made by an earlier speaker—I forget which one—who said that because this bill would at last enable us to ratify the status of forces agreement signed with Australia in 1998 it was appropriate to talk a little bit about the Anzac military relationship in today’s context. I want to do that because I think there are two issues that get confused. It is certainly true that Australians and New Zealanders have a brotherly relationship like no other on earth. We are the best of friends and the best of enemies and sometimes the lines get a little blurred. I think the answer for both countries in terms of our defence policy is not one whereby each should try to compete with the other to make sure that we go to the right conflicts because we have done that often enough in the past but for both of us to recognise that independently we do not have the military capacity technology or intelligence in a military sense to meet our own defence requirements entirely. 
We need to look at a greater degree of integration between our defence forces. It does not mean that we sacrifice New Zealand command or Australian command in the case of Australian forces but it does mean that we start to work together much more closely to see what New Zealand is good at and can contribute to in an operation where we are together jointly; and what it is that Australia is good at. That is one way in which that new Anzac spirit—which members say needs to be rekindled—can be achieved in a practical way that serves the interests of both nations. This bill will play a small part in enabling that to happen because it ratifies the 1998 status of forces agreement. 
Mr Keith Locke tried to draw some analogies between the threats or dangers inherent in this legislation with what is currently going on in Iraq at the hands of certain elements of the British and American forces. With respect although I understand the point he is trying to make that is drawing a very long bow. Under this bill I do not think it would be contemplated that any forces visiting New Zealand would be in the role that American and British forces are in Iraq or be here for any duration. I know he might make the point about the Deep Freeze operation in Christchurch but that is historical and the personnel are now largely scientists and coastguard officials. So I think the member is drawing a long bow in suggesting we are running the risk that American British or other visiting forces might end up doing to local people the sorts of things that are being done to Iraqi nationals. That is an unfair concern in the context of this legislation. 
Mr Locke did raise a more relevant issue that bears some consideration and certainly it occupied some time at the select committee—namely what happens if people who are detained in this nation under the powers of their own forces are subject to penalties greater than those that would apply in New Zealand or are deported to face a more serious penalty particularly the death penalty in an overseas jurisdiction? The simple answer is that we need to take each case on its merits. I seem to recall and other members of the select committee will correct me if I am wrong that defence officials advised us that in the event of that possibility they would want to take that up with the New Zealand Government at the time it arose to prevent an individual from being placed in that situation. 
Although this bill is 65 years late it is a positive step forward. It needs to be seen as a companion measure to the legislation passed a couple of weeks ago relating to the operation of New Zealand forces in overseas jurisdictions. So with the passage of this bill and the earlier one we will at last have updated our legislation in that area. At the time the original Act was passed in 1939 when Michael Joseph Savage would have been sitting on the benches over there and Adam Hamilton would have been sitting about where Mr Power is sitting we did not have such a concept as status of forces agreements. They are a comparatively recent innovation. Again that is why some of the problem has arisen as to how they might sit alongside the provisions of the original Act. 
This bill is good legislation. It was supported unanimously at the select committee. It is always a telling comment when the only people who make submissions on a bill are the Law Society and even then the submissions were technical and the society did not wish to be heard in support of the bill. So we probably have it about right. I am certainly happy to support the bill and to see it on its way. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I thank those who have spoken already in support of the Visiting Forces Bill. Obviously it has taken a considerable time to come to the House but it does mean that New Zealand’s law on visiting forces is consistent with other laws and we are now up to date. It is pleasing to see agreement across the House on this bill and I will not delay its passage any further. 
SIMON POWER (National—Rangitikei) 
: 
 I listened with interest to the contributions towards the bill made by members who sat on the Foreign Affairs Defence and Trade Committee. I was interested to hear Peter Dunne call the legislation straightforward and I was also interested to hear Dail Jones say it was a simple little bill. 
Actually the bill is not that simple. It contains some pretty difficult wording in clause 8. Members on the select committee will confirm that a substantial amount of work was done with officials to make sure that the wording in clause 8 which refers to the criminal and disciplinary jurisdiction of visiting forces actually works. I know that some of the comments raised by Keith Locke during this debate concerned issues members raised with officials in some detail during the course of the consideration of the bill. I was surprised to hear Dail Jones refer to the bill as a simple little bill. The ramifications of clause 8 and following on from Mr Locke’s point of clause 9 in particular are far reaching. 
Quite a lot of time was spent by the select committee discussing the relationship between the primary jurisdiction of the forces visiting and the potentially secondary jurisdiction of the host nation. That quite complex and intricate work had to be done so that those matters could be put down in the right order. When I look back on some of the papers presented during the course of the bill I am surprised that members believe it to be so straightforward. The select committee agreed more or less unanimously that in the absence of a status of forces agreement the visiting force would have the primary right to exercise all criminal and disciplinary jurisdiction conferred upon it by the sending State. That might not sound particularly earth-shattering but if members take a moment to think about the transplanting of one legal jurisdiction from a country offshore into a host nation for those visiting forces they will realise that it is quite a significant legal issue. 
 Then in the event that the actions by those visiting forces are not within the three categories contained in the bill—that is offences in respect of property or security of the sending State offences solely against the persons or property of other members of the visiting force or offences arising out of an act or omission done in the performance of official duty—then and only then does the primary jurisdiction fall back to the host country. Only in those circumstances—in other words only outside the purview of those three offences—does jurisdiction revert to the host nation. Peter Dunne raised the issue that at that point in the absence of the offence falling into the three-pronged system protected by the visiting nation it may well be that that becomes an issue of negotiation between the Governments of the host nation and the dispatcher of the forces. But I ask how good a law that is because it still presents the diplomats of various countries with quite a challenge in trying to determine in the event the offence does not fall into one of those three categories where the jurisdiction lies for the alleged offence. Now that may seem to be a slightly academic issue for members of the House but the question was raised in the select committee as to whether at that end of the equation it was appropriate to have a law in any event that would be solved in the end by negotiation between two countries. 
That begs the question as to what type of certainty we are getting with this legislation with regard to visiting forces because as the offence drops through the tiers set out in clause 8 the decision making ends up back with the diplomats negotiating. It all ends up back in the hands of the Ministry of Foreign Affairs and Trade officials. Although we might consider that to be a satisfactory practice the question has to be asked whether that makes good law. When Parliament tonight is charged really with only one thing—that is to present to the country clear certain and unambiguous law—we do have to ask that question. 
Having said that I say that we in the National Party along with every other party in the House support this bill. On this side of the House we believe that in many senses it is a mechanical bill but it is not a simple straightforward one as described by some other members. It is a bill that replaces I guess outdated legislation from 1939 and it reflects the international practice of foreign armed forces stationed in other countries. 
I look forward to seeing the Supplementary Order Paper that the Minister said would be tabled during the Committee stage. I am not sure whether the chair of the select committee was aware the Government would be putting forward a Supplementary Order Paper in respect of Tokelau and the like as we were told in the first reading of the bill. 
Hon Peter Dunne 
: I was. 
SIMON POWER 
: The chair was advised. I look forward to receiving that Supplementary Order Paper at the Committee stage so we can see that we are not going to get ourselves into further difficulty with uncertainty over the application of those provisions in the bill. 
So although this bill enjoys the unanimous support of the House and yes although on the surface it seems it is just a bill to update an international practice I re-emphasise that the difficult questions around primary and secondary jurisdiction and the arguments around those offences and which jurisdiction applies to them are not straightforward. This bill should not be described as it was by Dail Jones as a simple little bill. It is important legislation. It moves in the right direction to clarify complicated jurisdictional issues between visiting forces their sending nations and the host nation that receives those forces. On that basis National will continue to support the bill. 
CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I rise to support the Visiting Forces Bill and I touch on the final comments made by Simon Power when he called for clear and unambiguous law. That is ironic coming from that member and I will refer to it in a moment when we talk about as Mr Dunne did enhancing the security relationship through this bill. For that member to stand up given his recent statements in the last 3 or 4 days for he is the Opposition spokesperson on defence— 
Hon Dover Samuels 
: Or was! 
CLAYTON COSGROVE 
: —or was—and for him to call for clear unambiguous law and policy is quite ironic. It would be nice if we had from the Opposition some clear unambiguous straight-down-the-line foreign and defence policy. The only thing we have had as we know is the statement that will live to quote someone else in infamy. It was that New Zealand should support our Allies—Australia the UK and the United States—without reservation thereby of course surrendering command surrendering sovereignty surrendering any governance over our defence policy and more especially our own foreign policy. 
The commentary on the bill states: “Consequently the bill will contribute to the enhancement of New Zealand’s international defence and security relationships by providing a clearer and comprehensive legislative basis for the acceptance of visiting forces into New Zealand.” It talks about the enhancement of our security relationship and I know Mr Dunne made reference to that point. 
Let us look at that relationship historically. Historically New Zealand—along with other visiting forces—has always contributed to international engagement to international conflict in support of our allies. Key amongst them—and this is the only accurate thing that Mr Power pointed out—are Australia the UK and the United States. Historically we have followed the lead—some would say “by the nose”—of those allies. But in contemporary times— 
Simon Power 
: Be careful. 
CLAYTON COSGROVE 
: That is ironic—we have had nuclear power wind power and now we have Simon Power. I do not think I need to be careful. I think that member ought to take the advice of his own leader. 
Historically our relationship with visiting forces and our allies has been one where New Zealand has “followed”. That happened in the First and Second World Wars etc. In contemporary times we have taken a more independent stance which is not to say that we have not engaged and contributed but our foreign and defence policies have been based on our own terms and judgments. That is not appeasement and it is not pacifism. I do not believe in either of those things. I think that pacifism and appeasement are the politics of the naive and foolish. 
Decisions on the placement of New Zealand forces defence and foreign policy in contemporary times have been taken on our own terms. It is not a matter of where the Mother country goes where Australia goes where America goes we will follow without reservation. So does that mean we tell our fighting men and women that regardless of whether the cause is righteous or appropriate regardless of what our own foreign policy is or our sovereign beliefs are as Simon Power says “We’re going.”? 
The Visiting Forces Bill is a bipartisan bill and one that corrects a number of anomalies going back to 1939 and beyond but the question before us as we look at these defence and foreign policy issues is whether we should surrender command. I ask that of the National Party tonight. I see a former foreign affairs and trade Minister sitting behind Mr Power and I ask him whether he shares Mr Power’s view that we should surrender command. We did that at Gallipoli. We surrendered command. We did that in other historic wars. We surrendered command. But in contemporary times perhaps we now know better. 
Simon Power 
: Oh! 
CLAYTON COSGROVE 
: Read your history Mr Power! So does Dr Smith agree that we should surrender our sovereignty and be led by the nose by others? Suddenly there is silence. I think that for many New Zealanders that speaks volumes. 
I think this is a pretty basic bill which will enhance the relationship. It will correct some anomalies bring New Zealand law into line with other developments in international law and allow the forces of a foreign State in New Zealand—not just those within our own Commonwealth jurisdictions—to be covered by legislation. Is it not great that we as a country can pass legislation like this thinking for ourselves? Is it not great that as a Parliament we can look across the waters to other countries and pick the best from those countries but at the end of the day members can sit in a Chamber like this debate the Visiting Forces Bill and think for themselves? 
I say to Mr Power and others on the other side of the House that my party has a proud foreign policy tradition. I believe Australia the UK and the United States are our allies. I believe we have proved that as a Government through our international engagements in Iraq and other places. We know that the Opposition went into a frenzy when we would not engage on their terms and blindly send combat troops into Iraq to get a better trade deal. That was the basis of those members’ stance and they cannot walk away from that. That is what those members said. They said they would send our troops because Uncle Sam might give us a better deal and I do not hold the United States responsible for that. I lay that judgment squarely at the feet of the men and women in the National Party and people like Simon Power. 
As the House debates this bill and what it will do in respect of allowing New Zealand to give effect to the status of forces agreement signed in Australia in 1988 to provide safeguards against double jeopardy and allow coronial inquests into deaths arising from the presence of visiting forces what members know now are the real foreign and defence policies of the National Party. That is a party that cannot think for itself. That is a party that surrendered the moment Simon Power made his speech. 
I hope the men and women of our Defence Force some of whom I had the honour to see off to Iraq— 
Sandra Goudie 
: Where was that? 
CLAYTON COSGROVE 
: At Christchurch airport. That member was not there; that member was cuddling up to the bomb. They would not have those members there. I want to see the National Party front up at every Defence Force base around the country and tell our Special Air Services and our Engineering Corps—and it should come down to my region and tell the Canterbury regiments—that it does not matter whether the cause is righteous they are going in. 
Every soldier whether in a visiting force or not wants to know when he or she is sent into battle that what is being fought for is righteous—that what they are fighting for is the defence and honour of their country and their sovereignty. They want to know that their politicians and their country are behind them and that they have not just been sent there for some sort of commercial motive or—and it came out of the mouth of the babe of the National Party—through some sort of traditional archaic policy the National Party dredged up that says that where our allies go we will go without reservation and without question. 
Surely it is the nature of Government that when men and women are potentially sent to die in defence of their country one would question the cause. But not Simon Power; his view is: “Do not question the cause do not question whether it is righteous—send them.” Why? 
Jill Pettis 
: Because he won’t have to go. 
CLAYTON COSGROVE 
: Maybe that is true. The only risks we as politicians run every morning—and Simon Power has proved it in this Parliament—is that we open our mouths and make fools of ourselves. People do not ask us to defend them nor do we put our lives in the hands of another man or woman in our defence forces but those men and women go out every day knowing that they might not come back. Simon Power should reflect squarely on that as should the National Party. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 In speaking to the second reading of the Visiting Forces Bill I cannot help but comment on that silly little speech made by a silly little member from Waimakariri. If that member had been around this Parliament for any length of time at all he would know a little bit about the history of foreign policy in this country. There is no question that New Zealand’s foreign policy is a matter for New Zealand’s absolute sovereign determination and in New Zealand’s interests—absolutely. 
If that member knew more of the history of his own party he might have read a little bit more of what Michael Bassett has to say. He is an eminent historian and a former front-bench Cabinet Minister in a Labour Government and it is very instructive to read what Michael Bassett has to say about what drove foreign policy and continues—obviously—to drive foreign policy in the Labour Party and that clearly is not New Zealand’s sovereign best interests at all. I see that Michael Cullen has just walked into the House. As a former friend of Michael Bassett he knows only too well what went on back in those days when the Labour Party took New Zealand down a track that did not see New Zealand making its own sovereign best interest judgments but was driven instead by other motives and forces that had an awful lot to do with prejudices. [ 
Interruption 
] It is not me saying this; this is the view of that member’s own Dr Michael Bassett a respected historian who will talk about the prejudices of Helen Clark Margaret Wilson and Jim Anderton that drove New Zealand down a foreign policy path that was not—[ 
Interruption 
] 
I see that Mr Speaker is tapping the bill. It was the member from Waimakariri who went down this track and I am only responding to him. But perhaps I have said enough about Labour’s past which included anything but providing independent sovereign foreign policy for New Zealand. 
In looking at this Visiting Forces Bill—[ 
Interruption 
] 
Hon Dr Michael Cullen 
: Not visiting forces. 
Dr the Hon LOCKWOOD SMITH 
: Michael Cullen would not know about this because he was not there but the Foreign Affairs Defence and Trade Committee was briefed on it on 19 February. I refer back to my notes at the time and what I wrote down. I said: “Why the delay since the signing of the status of forces agreement with Australia in 1998?”. That agreement was reached in the last year of the previous National Government. 
What I wrote down at that briefing from the Ministry of Defence kind of speaks volumes about Labour’s attitude towards our defence relationship with Australia. Labour cared so little about our defence relationship with Australia that the status of forces agreement negotiated by the previous National Government in 1998 could not be ratified for 6 years and it cannot be ratified until this legislation is passed. That Labour Government cares so little about our defence relationship with Australia that those members could not be bothered advancing legislation to ratify that agreement. That is only one of the small reasons but it is still a contributing reason why Australia is so scathing about our contribution to the joint defence effort. 
Dr Cullen knows how scathing that country is because it has told him. One thing I will give Dr Cullen the credit for is that he is usually far more honest than Phil Goff is when it comes to reporting what he is told in foreign capitals. I will give Michael Cullen that because we know that Phil Goff never tells us what he is told in foreign capitals but Michael Cullen does occasionally. 
Hon Dr Michael Cullen 
: Go home to bed and think about it. 
Dr the Hon LOCKWOOD SMITH 
: What did Dr Cullen say? “Go home to bed and think about it.” Dr Cullen knows that our defence relationship with Australia is strained—Australia is highly critical—and if Dr Cullen said that he had never been told that then he would not be telling the House the truth. He knows and I know—because I talk to the same people that he does and they will not tell me different things to what they tell him—that the defence relationship is severely strained. One reason as the commentary on the bill acknowledges is that it has been 6 years since the status of forces agreement was negotiated with Australia and Labour could not be bothered advancing the legislation to ratify it. 
I want to speak about some of the detail of this bill because as my good colleague Simon Upton pointed out—my God I mean Simon Power. Simon Upton was also a very good colleague. 
Simon Power 
: I’m taller. 
Dr the Hon LOCKWOOD SMITH 
: Simon Power points out that he is taller and he is much taller indeed. But they were both very intelligent members of this Parliament—one a former member and one current. Simon Power pointed out that there are some complex issues in this bill—and the Government has seriously downplayed some of them—such as where a status of forces agreement does not exist where are jurisdictional boundaries to be drawn? It becomes a bit more complex than that because there arises issues as to when the New Zealand Bill of Rights Act applies. That is something the select committee heard a bit about and it is not clear. It becomes quite a complex issue. 
I am not sure the bill makes this very clear at all because as I understand it where the criminal and disciplinary jurisdiction under clauses 7 and 8 belongs with the visiting State party visiting forces would not be subject to the New Zealand Bill of Rights Act. In other words normal kinds of activity and behaviour in pursuit of the law in New Zealand normally are subject to the New Zealand Bill of Rights Act. As I read the bill the jurisdiction that a visiting State has under clauses 7 and 8 as amended and reported back by the select committee—and I draw members’ attention to the commentary—would not be subject to the New Zealand Bill of Rights Act. The last paragraph of the commentary states: “Finally we note that the New Zealand Bill of Rights Act does not apply to the acts of visiting forces.” It goes on to state: “However if the visiting force’s jurisdiction is exercised over or assisted by a person or body to whom section 3 of that Act”—referring to the New Zealand Bill of Rights Act—“applies … then the New Zealand courts would have jurisdiction in respect of that exercise or assistance.” 
I suspect that is quite complex legislation. There are circumstances when the New Zealand Bill of Rights Act may or may not apply depending on who might be involved in the exercise of criminal or disciplinary jurisdiction involving a visiting State. That is quite complex. I just hope that during the Committee stage this Parliament looks at some of these issues quite seriously. The key issues are in clause 8 which defines those jurisdictional boundaries. I hope members also have a good look at clause 15 which the select committee amended to ensure that the actions of visiting force authorities could not be further questioned in a New Zealand court. That is further complicated by the application of the New Zealand Bill of Rights Act which appears to apply or not apply depending on who might be involved in the conduct of a case involving a visiting State. 
So members can see that the issues like my good colleague Simon Power—a lawyer himself—pointed out are quite complex and they deserve the detailed attention of this Parliament. National supports this legislation but it does require detailed attention. 
Bill read a second time.