Mapp Wayne: Armed Forces Law Reform Bill — In CommitteeText is incorporated into the Bound VolumeMapp Wayne: Armed Forces Law Reform Bill — In Committee[Sitting date: 10 October 2007. Volume:642;Page:12264. Text is incorporated into the Bound Volume.]Dr WAYNE MAPP (National—North Shore): I wish to take a call on Part 5 which relates to particular provisions in the legislation on courts martial. The issue I want to specifically turn my mind to is the issue of the open court and excluding personnel clauses 149 to 151. As a general rule and as should be the case a court martial will be open and that is in accordance with justice being seen to be done. That of course was unexceptional and we naturally expected that. The interest however was the circumstances under clause 151 where the judge may limit the scope of open court. This is clearly around the extent to which the press can report proceedings and I should just make this perfectly clear. An open court is one that can be freely reported in the press and indeed these days I guess one would expect to find television cameras in the court in much the same way as one would see in the District Court and the High Court. After all the judge is the presiding officer and will apply in essence the same rules as exist in civil jurisdictions. But unlike a civil court a military court can be dealing with issues that bear on national security.As the bill was originally presented to the Foreign Affairs Defence and Trade Committee the scope in which the judge could limit open court was quite broad and we considered on the select committee overly broad. So we sought reports in which that could be narrowed. We clearly recognised there were cases where for matters of national security the court should be closed. We in essence limited it and they are to be in a sense read together here.The first rule is if the information that would be disclosed would be “directly or indirectly useful to the enemy or any foreign country;”. That is clearly quite a tight set of rules. It is quite a high threshold to say that something must be of assistance to the enemy as opposed to say general issues of national security which is a much broader concept. National security covers things where there is no enemy. For instance it could be terrorism it could be operations of the intelligence service it could be just internal operations of the Defence Force which do not necessarily assist the enemy or the foreign country.The second test is “be otherwise harmful to New Zealand;”. I know that some people will say that that is a very broad exception—Tim Groser: Air New Zealand flights for example!Dr WAYNE MAPP: It could be Air New Zealand flights for example but in fact it is really intended to be limited at least to some extent—and I want to state this on the record—by the first test. The fact that we have a limitation that is useful to the enemy or a foreign country is supposed to be some level of guide to what might be harmful to New Zealand. I know that these things are not capable of perfect precision and if there ever were a test on this it is the sort of case one could imagine going to very high levels of our courts to deal with and they would obviously look very deeply into the questions and how other jurisdictions and so forth have dealt with it. But I just want to place the matter on record becauseHansard can be read into this as indeed can the report of the select committee and we turned our minds directly to this issue under the heading “Media freedom” in the commentary on the bill. The second paragraph under that heading recommends that a new clause 151 be inserted providing that news media can be excluded only on specific grounds and then we actually set them out. They are tied together in a single sentence in our commentary. That was deliberate.So I want to put in a formal way in concluding this point that this is intended to be acted upon in interpreting this legislation. The intent of passing this legislation today is to put a high test on excluding the media and it is intended broadly speaking to be related to assisting the enemy or a foreign country. It is not only that because we do have the second test. But the point I am making here is that it is a high test and it is intended to be a high test.The select committee had several reports on this. We asked numerous questions on it and we changed the bill as presented to this higher threshold test so that in virtually all circumstances there will be an open court. But we recognise in the military circumstance that from time to time depending on the operational situation or depending on the defence situation of the nation the media will need to be excluded.It is important that we place these sorts of things on the record. And this I conclude for the benefit of those people who might be listening is one of the reasons we hold these Committee debates—to put things like this into the formal record as part ofHansard and as an assistance to the judges when they come to apply a provision such as this.