Locke Keith: Crimes and Misconduct (Overseas Operations) Bill — Instruction to Committee In Committee Third Reading 
Locke Keith: Crimes and Misconduct (Overseas Operations) Bill — Instruction to Committee In Committee Third Reading 
[Volume:616;Page:12235] 
KEITH LOCKE (Green) 
: 
 I rise on behalf of the Green Party to support this bill and its purpose. It was motivated by the commitment of personnel to the Solomon Islands. Because of the situation of lawlessness there we had to cover the police and the civilian personnel who went there so that if they committed crimes they did not commit them with impunity. There is a very good purpose behind the bill—to make sure that anyone on an overseas operation whether Defence Force personnel police or a civilian is subject to proper justice. 
Often in overseas operations there are situations of concurrent jurisdiction as the commentary on the bill mentions when offences are committed against citizens of the host country or when the offending personnel are in an off-duty situation. There are three categories of situation. Members of the visiting force can commit offences between themselves—in the Solomon Islands case between members of the New Zealand visiting force. There is a whole system within the Defence Force of course; if offences are committed between members of the Defence Force in an operation such as that in the Solomons there are procedures within that force to deal with that. At the other end of the scale if members of the force—or in this case New Zealand civilians as well—are off duty and commit crimes there is a general application of local legal jurisdiction. Then in the middle there is a bit of a grey area. If members of the visiting force in the performance of their duties are in some way reckless or criminal—driving erratically or whatever—and offend against a person or property of the local society there is often an overlap or concurrent jurisdiction and it is necessary to work out whether they should be tried locally or back in their home country or within the institution of the visiting force. Of course what happens in that grey area is often the subject of a status of forces agreement or negotiation between the parties. 
Although there is talk in the commentary on the bill about concurrent jurisdiction the emphasis has been towards the trial being held by the visiting country—in this case New Zealand—because of the state of the judicial system the police system etc. in the Solomon Islands. The situation there was very difficult when New Zealanders were committed over there and since that time many members of the Solomon Islands police force have been dismissed or are up on charges and Government officials and Ministers have been subject to some form of dismissal or prosecution. That shows the very difficult situation that our contingent went into and the need for a fall-back situation so that no New Zealander could get off scot-free if he or she committed what we all know to be offences and what would be offences under New Zealand law. 
That being said in a case like the particular situation in the Solomon Islands and there may be one or two similar ones that develop internationally we do not want to treat as the norm that the jurisdiction falls back on the visiting country—in this case New Zealand—because we want to develop the capacity of the host country to support its own justice system and apply its own laws. That is particularly so when its property or its citizens are affected by members of a visiting force be they defence personnel police or civilians assisting in governmental capacities etc. as is the case in the Solomon Islands. We support that capacity building. 
We do not really want to go down the track of the Australians in relation to Papua New Guinea recently and get into the problems that they have got into. They are trying to commit 230 members of the Australian police over there. New Zealand is sending some police too although I do not think that has taken place yet partly because of the big dispute that has occurred between the Australian Government and the Papua New Guinea Government over criminal jurisdiction. The Australians initially claimed full immunity for their police but people such as the Foreign Minister of Papua New Guinea Mr Rabbie Namaliu said that that was unconstitutional and undesirable and they would not accept it. The Australians have had to move to more limited immunity as the result of a two-way dialogue. They have moved back to a more normal situation where there is give and take and where jurisdiction is not totally given away by the host country. 
I listened closely to the points that Richard Worth made in relation to the application of the New Zealand Bill of Rights Act and the difficulties in relation to people who are not members of the armed forces. There are well-established systems in the armed forces not only the New Zealand armed forces but also other armed forces in terms of prosecuting people who commit crimes. In relation to civilians such as those we have sent over to help the Solomon Islands civil service it is a more difficult situation. This is a generic bill; it does not apply only to the Solomon Islands and one can envisage a situation under the bill in which our civilians are not necessarily accompanied by New Zealand police officers. If a crime is committed by a New Zealand civilian official working in a Solomon Islands Government ministry one imagines that a New Zealand police officer who happens to be there could do the arrest do a bit of the evidential work and do the beginnings of a prosecution before the person is brought back to New Zealand for trial. 
But one can see the problems that arise when one gets into extraterritoriality. As Richard Worth indicated there are only a couple of areas—sex offences and terrorism—where that extraterritoriality does apply. There are good reasons for being a little bit careful about it because clearly there are evidential problems in a situation like that of the Solomon Islands—particularly if the New Zealand Police were not there which could be the case in some other commitments. How does one know exactly what is going on or who has said what about a particular crime? When the person is brought back to New Zealand it is very hard to fully apply justice. There are difficulties in that situation which is why it is better to have jurisdiction lie with the local force even if the local justice system is imperfect in many circumstances. And I am not arguing that there was a proper judicial system in the Solomon Islands particularly when we first sent the force over there. 
I think we have to have some assumption that the New Zealand Bill of Rights Act applies. Whether it needs to be written into the bill we can argue about. The argument in the advice given to the Foreign Affairs Defence and Trade Committee which Ron Mark mentioned was that because the New Zealand Bill of Rights Act is not referred to in relation to the United Nations (Police) Act and the Armed Forces Discipline Act and because those procedures operate quite well legally we do not need to have it in this bill although one could say that the armed forces—and the United Nations acting internationally which we are tied into by that Act—do have quite substantial systems in place that mean there is not quite so much requirement that a reference to the New Zealand Bill of Rights Act be put in. But when we are talking about difficult situations applying to civilians overseas where perhaps there is no New Zealand police officer on the scene having a reference to the New Zealand Bill of Rights Act could be of some use. 
I have not heard a full report on the work we have done through our civilian commitment in the Solomons or the work the Australians have done in terms of building some of those institutions. I am sure a lot of the work has been very good work in terms of developing some of the ministries back to competence and helping to train local personnel but we have to be very careful when we intervene in a substantial way as we have done in the Solomon Islands in the civil society particularly in Government ministries etc. in that we might have a disposition to apply our own models. I would like to see an assessment of that. For instance the New Zealand Government approach—which is unfortunately a bit different from the Green approach—is towards deregulation privatisation and things like that which might not necessarily apply most effectively in the Solomon Islands. In the sort of chaos that ensued in the Solomon Islands the pressures to adopt an Australian or a New Zealand model might have been a little bit great. I will be interested to get an assessment of that and an assessment of whether the traditions of the Solomon Islands and the possibility of utilising them the tribal structures etc. were fully taken account of in our helping to rebuild Solomon Islands society.