Crimes and Misconduct (Overseas Operations) Bill — Instruction to Committee In Committee Third Reading 
Crimes and Misconduct (Overseas Operations) Bill — Instruction to Committee In Committee Third Reading 
[Volume:616;Page:12223] 
Crimes and Misconduct (Overseas Operations) Bill 
Instruction to Committee 
Hon RUTH DYSON (Minister for ACC) 
 on behalf of the  
Minister of Foreign Affairs and Trade 
: I move  
That it be an instruction to the Committee of the whole House on the Crimes and Misconduct (Overseas Operations) Bill that it take the bill part by part 
. 
Motion agreed to. 
In Committee 
Part 1 Preliminary provisions  
RICHARD WORTH (National—Epsom) 
: 
 National supports the Crimes and Misconduct (Overseas Operations) Bill a short bill of only two parts. Its primary purpose as the commentary from the Foreign Affairs Defence and Trade Committee makes clear is to enable the exercise of jurisdiction over New Zealand police personnel and civilians serving overseas as part of non - United Nations deployments. A number of features of the bill however are directly worthy of comment. 
I would like first of all to refer to the definition of “overseas operations force” in clause 4 which makes it very clear that it does not include any member of the police who is part of a United Nations force and to whom the United Nations (Police) Act applies. The curious point perhaps about this legislation is that it was designed with a specific operation in mind—an operation in the Solomon Islands where we have now been for quite a significant period. In that context I just reflect on the legislative history of this bill relating to Part 1. The bill was introduced on 29 July 2003. There was no delay at that early stage because on 5 August 2003 it had its first reading and was referred to the Foreign Affairs Defence and Trade Committee. So the delays have set in since then. I suppose we can legitimately wonder what has happened in the interim in respect of the military operations that have occurred in the Solomon Islands—military operations police operations peacekeeping operations and peace-making operations. The answer it seems is that there has not been a problem. 
I ask the Minister: what is the mischief here? We have had an opportunity to assess the need for this legislation in an environment of danger where the rule of law is certainly very much at risk. One of the phrases Minister Goff used was that “the Solomons is a failed state”. He said that it was in danger of becoming a haven for terrorists and drug traffickers that it was close to anarchy and that any police deployment would need military support. Our presence there comprised police officers apparently some 40 senior officers and up to 200 troops who were added to the Australian contingent. They were armed with Steyr 5.56 millimetre rifles light machine guns grenade launchers and 9 millimetre pistols. 
I think we would do well as members of Parliament to reflect that when the Government determines it will not with speed advance legislation then legitimate questions can be asked as to the need for that legislation. It is right to say of course that it is intended that the legislation have an effect in futurity and that was made clear in the commentary; it was not only to apply to the Solomon Islands but also to future peacekeeping and peace-making deployments. Although National supports this legislation we assert that legitimate questions can be asked on this question of need. It was also very much in the minds of members of the Foreign Affairs Defence and Trade Committee when they looked at this legislation and heard the only submission that came to them—a joint submission from Alberto Costi Fran Wright and Naresh Perinpanayagam of Victoria University law school—that the police would not be armed. But that of course has not proved to be the case. In inviting the House to commend this bill I note those aspects. 
JUDITH COLLINS (National—Clevedon) 
: 
 Just following on from my colleague Mr Richard Worth there are a couple of points I would like to make on this part. First I note again that this is retrospective legislation. Retrospective legislation is of necessity something we should indulge in only when we really really have to. I wonder why when this bill was introduced back on 29 July 2003—5 days after it was deemed to have come into force—we are dealing with it here under urgency. Is this a situation where basically the bill has been put into urgency because the Government has nothing much else it wants to put into urgency? I have to question whether that is what is happening. There have certainly been other instances of urgency and plenty of other sitting days since the bill was introduced. I believe that the bill has the support of the entire House—it has had it all the way through so far anyway—and I cannot see why we have waited this long for it if there were any need for it to be looked at. 
One of the issues Mr Worth raised related to the Solomon Islands. Quite often our troops and peacekeepers—this only really deals with police and other peacekeeping people not our soldiers as I understand it—will be sent to and are being sent to places that are extremely unsafe for them and where there is no adequate criminal law jurisdiction policing or any other court system. Consequently the Government has decided—and I think with the authority of the House—that it is important that these people are subject to New Zealand criminal law if they are not already subject to the criminal jurisdiction of the place in which they are operating and criminal proceedings are not brought against them. However this bill does not protect our service personnel and police from the jurisdiction in which they are operating. That is an interesting point because if our New Zealand citizens are operating at our request in countries where for instance a criminal offence might bring with it the punishment of a hand being chopped off or execution then this bill will do nothing to help them. So this bill will not necessarily help our personnel at all—in fact quite the opposite. It is a bill to make sure that whatever they do will be subject to New Zealand law if they are not first prosecuted in that particular country. 
As Mr Worth said if there were any great and pressing need for the bill it would have been passed right back in August last year. It was not and I just wonder why it is taking so long to move through the House particularly when every party in the House to my knowledge supports it. 
Hon TAITO PHILLIP FIELD (Minister of State) 
: 
 I am happy to contribute briefly to this bill which as indicated by previous speakers is supported by all parties in the House. It is a very good bill introduced by the Minister of Foreign Affairs and Trade the Hon Phil Goff. It acknowledges an agreement between New Zealand and the Solomon Islands on what is necessary for the deployment of personnel to the Solomon Islands. I am very proud of the fact that New Zealand and other Pacific nations are involved in the restoration of law and order in the Solomons. 
I want to point out that in the agreement for that deployment the Solomon Islands Government agreed to cede jurisdiction only if New Zealand had statute that allowed that jurisdiction for non-military personnel. This bill is necessary in order to ensure that other classes of personnel who are involved in the deployment in the Solomons are covered in terms of New Zealand jurisdiction and law if they commit an offence. As part of that agreement for deployment it is necessary that we honour what is required under that deployment. That is why this legislation is necessary. I believe that it is well-drafted law. The select committee has done a good job. I support the bill. 
RON MARK (NZ First) 
: 
 I want to take a very short call on behalf of New Zealand First to put on record that New Zealand First will support this bill as we have supported its passage thus far. I also put on record that it concerns us that we have had service personnel deployed in the Solomons since 24 July 2003 and here we are under urgency today moving the legislation forward another step. That is not adequate. Despite the complimentary words that have been made to the Minister of Foreign Affairs and Trade that is too slow. 
Is it any wonder that service personnel whom we send overseas sometimes believe that Parliament has forgotten them? 
Probably the irony about this legislation is that given the situation in the Solomons it is not the New Zealand police whom we are worried about. It is actually the police force of the Solomons which the New Zealand police have gone over to teach train and guide and whose culture is quite clearly in need of adjustment. They are the people who have been perpetuating crimes upon their own citizens and against New Zealand citizens and New Zealand businessmen which have gone for so long untended. That in itself is a further indictment on this Government and on past Governments for their inaction. Probably and quite clearly the saving grace is that we have moved on from that. 
I would give only one word of caution for those who think that this is a short-term operation—that our people are serving over there and that they will be home soon. I would simply say: “Forget it.” The situation in the Solomons is one that will be extremely fluid for many years to come and it is my prediction that we will be required to have servicemen over there working with the authorities in the Government for quite some time to come. Either that or we will do what we are becoming renowned for doing: turn our backs and let the Aussies carry the workload which is something I would not like to see happen. 
The bill is essential. It is necessary that any service personnel that we send over to such places as the Solomons in the circumstances of being outside the auspices of the United Nations do need to have a clear understanding as to their obligations in terms of their compliance with the law. We support the bill. 
Hon KEN SHIRLEY (Deputy Leader—ACT) 
: 
 ACT New Zealand also supports this bill but again we would like the Minister in the chair the Hon Ruth Dyson to tell us why it has taken as long as it has. That is a valid question which has been raised now by two people in this debate. Why indeed is it necessary the bill having languished for so long on the parliamentary Order Paper for it to be rammed through under urgency? I suspect given the support that all parties have expressed for this bill there is absolutely no need to take it through parliament under urgency. In fact it will probably take longer to put the bill through under urgency than it would have taken if we had done it in the normal process of the parliamentary week. Perhaps the Minister will have the grace to tell us why that is the situation because the reason is certainly not clear. 
In essence this bill is all about the principle of responsibility under the law being based on nationality as well as territoriality. New Zealand it seems has not shared the expansion that other countries have had and the bill is of course confined to civilians abroad: to police officers acting on Government directives and to those people who are not covered by United Nations legal requirements. So it does seem that the bill fills a gap. Certainly the Solomons experience triggered the need for this bill but of course it is not specific to the Solomons—as indeed it should not be. I think it is quite conceivable that in the years ahead we will have similar situations arise to that in the Solomons particularly given we live in what is becoming a quite unstable Pacific region. ACT supports this bill as it seems does every other party in the Committee. 
GORDON COPELAND (United Future) 
: 
 I would like to take a brief call on behalf of United Future to signal our support also for the Crimes and Misconduct (Overseas Operations) Bill. It is a well-thought-out bill. I believe that it means that police and civilians serving overseas as in the Solomons will in respect of crimes committed in the course of their official duties be subject solely to New Zealand’s jurisdiction. We will have the exclusive jurisdiction over those people in that situation. That I think is a very common-sense safeguard so that we do not risk having our police and civilians in the Solomons and other places arrested by the locals whilst trying to exercise their official duties. In one sense it is just simply a question of saying that there has to be one line of authority for such people and that that line of authority has to be definitely connected through the operational framework back to this nation since they are our citizens and we have after all sent them into places like the Solomons to assist the locals and to bring peace to such nations. 
At the same time the bill makes it clear that if those people commit crimes when they are not on their official duties but are just in their time off—or rest and recreation—they will be subject to the jurisdiction of the local authorities. That to me also makes sense. 
We signal our support for this bill. 
Part 1 agreed to. 
Part 2 Jurisdiction over police and civilian members of overseas operations force 
RICHARD WORTH (National—Epsom) 
: 
 I thank the Committee for the opportunity to contribute to the debate on Part 2 and I am certainly looking forward— 
Darren Hughes 
: Thank you! 
RICHARD WORTH 
: I thank the junior whip on the Government side of the Chamber. I am certainly looking forward to the contribution of the Minister on this part because this is where the substantive regime in respect of crimes and misconduct prosecutions is founded. A number of issues arise in connection with this part. First of all a distinction is drawn between police officers and civilian members of an overseas operations force. I doubt whether that is in fact an appropriate distinction to draw. All people are equal under the law. Why should one class of person be subjected to a different regime from another class of person? I am speaking of police officers on the one hand and civilian members on the other. It is all very well to say that military personnel may be in a different class because of the range of responsibilities their task entails. But I would not have thought that it is necessarily a logical argument to create the division that occurs in this part. 
Of course there is an aspect of protection in this part in that no information—no charge in other words—is to be brought against any person without the consent of the Attorney-General. It is difficult to see how the present Attorney-General would be a fit and proper person to make such a judgment but presumably it would be founded on the view of her advisers. One would certainly hope that in the context of the decision-making roles that the Attorney-General is asked to perform there would be well-supported advice before she made such a decision. That is certainly important as I reflect on some recent issues that have occurred. 
There is a constitutional issue however that is perhaps worthy of brief comment and an earlier speaker touched on it. The issue is that in general terms New Zealand has taken the line consistent I think with high constitutional principle that the basis upon which jurisdiction should be exercised is not nationality but territoriality. We just need to reflect on that by testing the proposition that a New Zealander on a Belgian ship in a French river should not have New Zealand law apply to him or her. Where however it has been decided that the territorial principle is the correct approach to take New Zealand has been hugely reluctant to extend that to a principle of extraterritoriality. We have made some exceptions—for sex crimes for example—where we have seen New Zealand law reach out into the country where a particular offence has occurred. We have also seen that in the area of terrorism. But it is truly rare. 
I would argue in respect of civilians in another location that the primary inquiry should always be about the nature of the criminal justice system in that particular country. If there is a stable legal system should it not be the case that an offender a New Zealander or otherwise should be dealt with in accordance with the laws of that particular jurisdiction? I do not wanted to be churlish about these issues of course and as I have said National supports this bill. But when one reflects on the constitutional implications of some of the things that are planned then I guess a degree of reservation must be entertained. 
Another point relates to the New Zealand Bill of Rights Act. The Foreign Affairs Defence and Trade Committee which briefly considered this legislation contemplated that there should be incorporated a New Zealand Bill of Rights Act standard. It seems to me that the commentary which discusses the necessity of having a reference to the New Zealand Bill of Rights Act is at the least weak. It states that the people who are dealt with by New Zealand law in foreign countries would have exactly the same protections as New Zealanders who are dealt with in this country and it seems inappropriate to include reference to the New Zealand Bill of Rights Act. So there is an aspect of disadvantage for those people who are in foreign countries. 
JUDITH COLLINS (National—Clevedon) 
: 
 I take this opportunity to take a short call on Part 2 of the Crimes and Misconduct (Overseas Operations) Bill. As my colleague Mr Richard Worth said there are constitutional issues in relation to the bill that need to be considered. There is also the issue I have raised before over the actual jurisdiction. 
When I looked at how the bill would operate in the unlikely event that the Attorney-General would need to make use of it I asked myself how clauses 5 and 6 would operate. One of the issues would be the provisions in clause 5(2) which state that the jurisdiction applies when the offence has been done or omitted within New Zealand where it would constitute an offence. I had a concern at the second reading about how that would operate if a person who is accused of an offence said that he or she was not subject to the jurisdiction because the offence did not occur or because he or she did not commit it. The bill does not state that if someone is accused of the offence then it is deemed that the place where the person is accused of having committed the offence is in New Zealand. I am just wondering whether that is a chicken and egg situation happening. I would query very much if there were a prosecution whether a defence would be that the jurisdiction did not apply until after the offence had been proven. 
Clause 6 “Powers of arrest and detention” relates only to when someone is alleged to have committed an offence. I wonder whether the Minister in the chair the Hon Ruth Dyson or the officials who are available could confirm that clause 5(2) would still operate on the basis of an allegation rather than a proven situation. I am sure that the Minister is taking note of that. It is a situation where we would not want this bill— 
Hon Ruth Dyson 
: 5(2)? 
JUDITH COLLINS 
: Yes. We should make sure that the bill goes through in a way that it does not come back at a later stage to hit us. I see that it is certainly covered in clause 6 but that clause is about the arrest. It is just the actual jurisdiction thing. That is the main point that I wanted to make on this part. 
RON MARK (NZ First) 
: 
 It was interesting listening to the comments raised by Mr Worth in his discussion—[ 
Interruption 
] I was not listening to the comments made by Judith Collins. I am not a legal beagle and I have never really wanted to be but to help the Committee—and I thought the Minister in the chair Ruth Dyson might want to comment on this—I can advise that the lack of distinction between civilians and the police members of an operation was considered and discussed. It was suggested that consideration be given to deeming civilian persons on a non - United Nations deployed mission to be members of the police. The concern appeared to be that there was insufficient distinction between the situations of the police and civilian members of an operation. 
The Foreign Affairs Defence and Trade Committee did not consider that greater distinction than at present was warranted between the two because in reality both would be subject to prosecution for the same sorts of offences regardless of whether they were police or civilian members of the operation. It was put that if police members have defences available to them because of their policing role those defences would be available by virtue of their policing role and status. The committee accepted the view that it would not be wise to take an approach that sought to treat civilian members artificially as police personnel not least because of the different consequences that may flow in terms of the defences available to them. 
I come now to the New Zealand Bill of Rights Act issues. Those issues were discussed and considered. I draw members’ attention to the commentary on the bill. There was subsequent discussion and legal advice suggested it was arguable that the current arrest provisions may give police powers to arrest only in New Zealand. Accordingly the New Zealand Bill of Rights Act would apply by virtue of section 3 of that Act. Section 3 provides that the New Zealand Bill of Rights Act will apply only to acts done by “any person or body in the performance of a public function power or duty conferred or imposed on that person or body by or pursuant to law.” The committee did not believe however that there would be value in clarifying the bill. So it is clear that police would also have the power to arrest overseas. 
A number of changes and amendments were made. One of them was to clause 6(2) to read: “(a) the person may be arrested without warrant within or outside New Zealand—or (b) a warrant for the person’s arrest may be issued in New Zealand and executed within or outside New Zealand” A new subclause (4) was added stating that “Any person arrested outside New Zealand may be detained in custody outside New Zealand for as long as is reasonably necessary to enable the person to be taken to New Zealand.” Quite a bit of discussion goes on in the interdepartmental report on the submission that deals quite extensively with the New Zealand Bill of Rights Act and any relevance. The bottom-line recommendation made was that clause 6 “Powers of arrest and detention” be amended to make it clear that the police would have powers of arrest overseas. The committee did not recommend any changes to include a reference to the New Zealand Bill of Rights Act. If we read the interdepartmental advice we see that the matter is dealt with quite clearly there. 
Part 2 agreed to. 
Clause 1 agreed to.  
Bill reported without amendment. 
Third Reading 
Hon RUTH DYSON (Minister for ACC) 
 on behalf of the 
 Minister of Foreign Affairs and Trade 
: I move  
That the Crimes and Misconduct (Overseas Operations) Bill be now read a third time 
. The bill ensures that members of the police and other persons serving in overseas operations such as in the Solomon Islands are subject to the jurisdiction of New Zealand courts for offences they commit overseas against New Zealand law. The catalyst for the bill was the Status of Forces Agreement with the Solomon Islands. It provides that in the case of offences that occur outside the course of official duties the Solomons will seek jurisdiction only if the sending country can assert its jurisdiction overseas. 
 We had some discussion during the Committee stage in relation to clause 5(2) when an honourable member opposite queried the intention of the legislation with the interpretation possible and I have confirmed advice from officials that her concerns are probably without foundation. But I appreciate the manner in which she drew them to the attention of the Committee. 
New Zealand is currently able to assert jurisdiction over New Zealand defence personnel serving overseas and members of the police serving in a UN overseas operation. However New Zealand cannot do so in respect of people serving in a non-UN overseas operation. Accordingly if members of the police and other persons are not subject to the jurisdiction of the New Zealand courts and they are involved in offences falling outside of official duties the only option might be prosecution in the Solomon Islands. So the bill will minimise the possible exposure to Solomon Islands law of members of the New Zealand Police and other members in the overseas operation. It will also ensure that New Zealand can assert its jurisdiction over members of the police and other persons serving in future overseas operations. 
The bill will be retrospective. Once passed it will be deemed to have come into effect on 24 July 2003 allowing New Zealand courts to assert jurisdiction from the beginning of the deployment. The issue of retrospectivity was carefully considered when the bill was vetted for compliance with the New Zealand Bill of Rights Act as section 26 of that Act limits the creation of retroactive offences. The Attorney-General concluded that the bill is not inconsistent with the rights and freedoms contained in the New Zealand Bill of Rights Act. The retrospective application of the bill is seen as a justified limitation because of the importance of protecting New Zealand personnel from possible exposure to a legal system that may be incongruent with the standards applicable in New Zealand. 
Although the bill does not contain a clause expressly allowing for waiver of New Zealand jurisdiction no one can be prosecuted unless the Attorney-General gives consent. This requirement in effect gives the ability to waive jurisdiction in situations where in the interests of fairness and justice it would be preferable for the host country to retain jurisdiction. The bill also makes it clear that New Zealand police will have the power to arrest personnel covered under the bill overseas and to detain them for as long as is reasonably necessary to take them to New Zealand. This complements New Zealand’s power to assert its jurisdiction in respect of such offences. 
The arrest power provides similar arrest powers as are contained in the United Nations (Police) Act and the Armed Forces Discipline Act. However it is not a generalised power to arrest overseas. The arrest power relates solely to the arrest of persons involved in those overseas operations and who commit offences while serving in an operation. An arrest under this power is not conditional on the prior determination of fact or an assessment of evidence by a New Zealand court. The bill provides that the provisions of the Crimes Act relating to arrest will apply to the arrest of a person under the bill. So that means that a person can be arrested only in the circumstances that are permitted under the Crimes Act. However the Attorney-General’s consent must be obtained before the prosecution itself proceeds. 
The enactment of this bill will therefore ensure that our police and civilian personnel serving in the Solomon Islands in similar operations in the future enjoy the same protections as defence and police personnel serving in similar United Nations operations already enjoy under our law which is consistent with international practice for these sorts of operations. It is for that reason I am sure that this bill has deservedly received such widespread support from the variety of parties in our Parliament. I commend the bill to the House. 
RICHARD WORTH (National—Epsom) 
: 
 I am grateful for the comments the previous speaker has made in the context of the Crimes and Misconduct (Overseas Operations) Bill. National supports this legislation. There are some aspects of the legislation however in respect of which we entertain a degree of reservation. A principal concern would have to be the legislative process that has been followed in this case. The Minister has sought to justify as best she could with all the available arguments that could possibly be mounted the reason that this Act will be deemed to have come into force on 24 July 2003. Generally legislation is prospective. It takes effect after it has received the royal assent. There are specific provisions that provide that legislation comes into force at a future date but not so in this case. Instead this legislation has been backdated to 24 July 2003. 
The Minister has explained to us—or tried to—the reason for that backdating. It is to mark the commencement of the deployment to the Solomon Islands so it is a little unclear as to whether there is a swathe of charges to be laid against police officers and other civilian personnel in respect of activities they may have been involved in in the Solomons from the period 24 July 2003 to the present time. Let us hope that that is not the case. Let us hope that the office of the Attorney-General is not cluttered with decisions to be made in respect of multiple charges and multiple accused. 
This legislation is to some extent a complement to the United Nations (Police) Act of 1964. That legislation which came into force on 14 May 1964 has served New Zealand well and provided a measure of control and discipline for police officers engaged in United Nations service. A gap was discovered and led to the Crimes and Misconduct (Overseas Operations) Bill. This bill allows New Zealand to exercise criminal jurisdiction over New Zealand police personnel and civilians serving overseas as part of non - United Nations deployments. So the bill will allow New Zealand to exercise jurisdiction over non - armed service personnel participating in the Solomon Islands deployment. 
It was a very historic step on the part of New Zealand to send troops and police to the Solomon Islands and it might very well be the case that Taito Phillip Field will offer some comment on that. But my recollection as a matter of history was that the last time we saw an entry into this part of the Pacific was probably to suppress the Mau rebellion against New Zealand rule over Samoa. That culminated of course in what some commentators have described as the infamous 1929 “Black Saturday” on which New Zealand troops opened fire with machine guns on unarmed Samoan protestors killing nine and wounding over 50 other personnel. 
I have two primary concerns about this legislation and the first I had an opportunity of briefly touching on in the Committee stage of the bill. That is it seems to me that for no good reason the select committee set its heart against the inclusion in this bill of appropriate reference to the New Zealand Bill of Rights Act. They certainly turned their minds to that issue but I urge members of the House to reflect on the possibility that those who are charged with offences on foreign soil under New Zealand law should have the full rights that are available to people who are charged under New Zealand law on New Zealand soil. By not making specific reference to that legislation a gap is created and potentially an injustice is done. 
Of course it is beyond the scope of what I seek to say during this third reading debate to offer any detailed view on the New Zealand Bill of Rights Act. But I would note that under Part 2 of that legislation a number of critical rights are given in the area of search arrest and detention. For example there are provisions like section 21 “Unreasonable search and seizure”; section 22 “Liberty of the person”; and minimum standards of criminal procedure are set by section 25. I would have thought that a robust Committee imbued with a proper sense of jurisprudence might well have seen it as appropriate to include reference to the New Zealand Bill of Rights Act. The sophistry apparent in the commentary of the select committee I would assert is unfortunate. 
The second issue that I believe is worthy of comment relates to this whole issue of territoriality and nationality. New Zealand has generally followed a practice that our laws are intended to have effect within New Zealand only. That has not been the invariable practice in respect of other countries but from a constitutional perspective it seems sound and reflects the well-understood sovereign doctrines in international law. When there have been exceptions they have been made with significant care and I can see members opposite nodding in acquiescence with that comment. There are so few exceptions but I will instance just two. Those two relate to aspects of the criminal law. [ 
Interruption 
] Is it not an excellent outcome that Government members have suddenly become awake and that on the opposite side of the House there is a fertile interest in constitutional law doctrine? 
The two examples relate to the readiness of the New Zealand Government to prosecute for sexual offences committed outside this country and the very deliberate legislative entry we have made in connection with terrorist activities outside this country. 
So I conclude that there was clearly justification for bringing this legislation before the House at the start of the Solomon Islands deployment. However the Government has disgraced itself by the slow passage of this legislation. When one asks: “What is the intended mischief?” the answer is that the passage of time has seen no real mischief created—and why might that be? I suggest that it is because in the international arena New Zealand punches above its weight and that in our peacekeeping and peacemaking operations we show a commitment a care a diligence and a compassion that may well not need legislation of this type. That was apparently not the view of the Government. It seems that on this occasion as on many occasions in recent times the Government was again wrong. So it may very well be that we can move to the early repeal of this legislation which is a further indictment of this Government’s failure to focus on the really important aspects of legislative policy. 
DARREN HUGHES (Labour—Otaki) 
: 
 It is a true pleasure and delight to follow the sacked Opposition defence spokesperson—the member for Epsom Richard Worth. I just wish that when he had been the spokesperson on defence he had used the words that we have just heard from him because he just told the House that New Zealand punches above its weight on international commitments and I totally agree with the member on that point. I think it is absolutely right that New Zealand has a proud record in these areas. Yet when he had responsibility for defence he never said those things. So I am glad we have given him the opportunity under urgency on the Crimes and Misconduct (Overseas Operations) Bill for him to come down and fess up as to his true belief in New Zealand’s great reputation in these areas. To that end I support the third reading of this bill. 
Hon RICHARD PREBBLE (Leader—ACT) 
: 
 I rise to speak to the third reading of the Crimes and Misconduct (Overseas Operations) Bill which fundamentally has been passed so that in the event of New Zealand personnel serving in the Solomons committing a crime—and although the operation is not United Nations peacekeeping it is still peacekeeping—it would be deemed to be a crime in New Zealand under this bill. Such persons can be arrested in the Solomons by New Zealand Police and tried in this country under New Zealand law for the crime committed in the Solomons which otherwise could not be done under our territorial laws. 
As it happens I was in the Solomons when the Solomons Parliament introduced its parallel bill. It was not made abundantly clear by the Minister but the Solomon Islands Parliament has passed a law that exempts New Zealanders serving in the military in the police and as civilians and we have given an undertaking that should a New Zealander commit a crime he or she will be prosecuted in this country. The first thing I want the House to know is that the Solomon Islands judiciary never collapsed during the peacekeeping. There are still expatriate judges and Solomon Islands judges and if the House gets the impression that the Solomon Islands judiciary is not capable of giving a fair trial to a New Zealander that is not so. It most certainly was the fact that at the time we intervened the Solomon Islands police force probably was not capable of doing such prosecutions and it certainly did not exercise proper policing functions over large parts of the Solomons which is the reason for the intervention. 
I am a little concerned that the bill is open-ended. There must come a point where we ought to say that law and order has been restored in the Solomons and there is really no case for a New Zealander who commits a crime in the Solomons to be able to say that he or she should be tried in this country just because he or she is serving say as a civilian adviser. 
With the Solomon Islands having passed its part of the bill it is now necessary for this Parliament to pass our part but I do make a few comments about this legislation. I support the bill in the sense that I myself have made representations—not just to this Government but also to the previous Government—that the situation in the Solomons did require intervention and it would not be able to be healed within that country. There are complicated reasons for that which go to the nature of the ethnic tension. I have also said to successive Governments that an intervention would be very successful and it would not actually require a very large number of New Zealand personnel. While it has been very successful I think the numbers we have sent are way over the top but that is partly because we were with the Australians and they tend to be a bit way over the top. We never needed anything like that number and I still think that the number of police serving in the Solomons from New Zealand is excessive. 
I make the point to the Minister of Finance that we ought to be thinking about pulling some of those numbers back and part of the reason I say that is that our aid vote to the Solomons is being reduced in other areas in order to pay for policing. So we ought to be conscious of the fact that we do not want to send across more of something they do not need when that means we are not able to help them more with things that they do need. 
But coming back to the bill itself I think I should defend the Solomon Islands judiciary. I think that they held to their task when there was a civil war going on and when the Solomon Islands police force was a large part of the problem. It was not all of the police I have to say but when some of the police were out of control the judiciary themselves continued to uphold the rule of law. I think that a New Zealander who committed a crime in the Solomons would always have had a fair trial in the courts and would have a fair trial today. 
 Having said that this is the best part of the package that we agreed to with the Australians and the Solomon Islands Government. I suppose that we also agreed with the volunteers—because they are volunteers although I do not know whether the Army are volunteers; the police certainly are volunteers as are civilians. They were given an undertaking that this law would be passed. I think—and I am putting it slightly differently from Mr Worth—that New Zealand is somewhat overextended in the number of peacekeeping operations it is conducting. I think that we are in 22 different countries or something like that. It is said that we are punching above our weight and I also think we ought to look at whether that is sensible. The Solomon Islands are in the Pacific and is clearly an area of interest to us so I acknowledge that I call for this intervention. I believe that the Government has done the right thing. Having done that I acknowledge that Parliament is obliged to pass this bill so the ACT party will support its third reading. 
RON MARK (NZ First) 
: 
 I do not intend to rotary hoe the same paddock over and over again nor to go over much of the commentary by Richard Worth and the Hon Richard Prebble—who has far more experience in terms of the Solomon Islands than many other people if not any other person in this House. However I want to touch on just a couple of points. 
Firstly as I understand it this bill is not targeted specifically at the Solomons. It is true that it came to pass because in deploying troops civilian personnel and police into the Solomons it was recognised that we had a gap in our legislation in terms of criminal jurisdiction over those people we sent there. The question that comes to my mind is why had we not found this out some time ago. We have had peacekeeping personnel in many theatres all over the world for a great period of time. If I cast my mind back to the initial deployment of forces into the multinational force of observers in the Sinai in 1982 although the initial deployment had only military personnel New Zealand civilians were there. It seems rather strange that it took until 2003 for people to recognise that we had a gap in our legislation and in our criminal jurisdiction and to do something. It is even stranger that having identified that gap on 24 July 2003 we are sitting here under urgency on 31 March 2004 progressing this bill to the third reading. I suggest that it tends to indicate an element of tardiness on someone’s part. 
I feel the need to comment on a couple of comments that have been made. The historic nature of the deployment of our troops and police into the Solomons is acknowledged. I do find an irony in the fact that the main reason we sent police there was that people could not trust the Solomons police force to do its job—and here we are today. There were reports of police being involved in criminal activities and of widespread corruption. A friend of mine who worked in the Solomons for many years was flabbergasted to find that after the murder of a New Zealand businessman over there when everybody was discussing and openly talking about who had carried out that murder nothing had been done by the police to arrest that man. Also stories came back to New Zealand of police driving around in vehicles that had been reported as stolen and there were no charges. The irony is not lost on me. Here we are passing legislation to make it possible for us to prosecute our policemen should they err and the very reason for their being there is that the Solomons police were criminally in err. 
There were comments about New Zealand punching above its own weight and being overextended in deployments such as this. That was the very first comment I made for New Zealand First when it was announced that New Zealand was sending troops to the Solomons. My comments—and they were latterly picked up by the National Party—were that we were overextending ourselves and that this Government in particular in pursuit of international kudos had no consideration at all for the plight of the service personnel that it was tasking; it had no consideration at all for the plight of the families with service personnel just returning from one deployment and being sent off on another one; and it had no consideration or understanding of the level of commitment of our Defence Force personnel and of how thinly stretched they are on the ground. But that did not concern the Government because its overriding desire was to look good in front of the United Nations and the international community to paper over the cracks and to pretend that our deficiencies and shortfalls in personnel and the heavy workloads simply did not exist. 
That is precisely what Minister Burton said in response to my comments. I note that those comments were not shared by senior officers in the Defence Force and that they were later reflected in a paper that became public through the  
Sunday Star-Times 
. 
Barbara Stewart 
: How did that happen? 
RON MARK 
: Yes I wonder how that happened. Only then did the public of New Zealand get the true picture. To say that we are punching above our own weight is I think a wee bit boastful particularly in the light of recent medical surveys that show that the biggest threat to New Zealand’s health and wellbeing is obesity. [ 
Interruption 
] Do members get that? I think they will. The point is that we can sit here and applaud ourselves all we like pat ourselves on the back and bestow medals wreaths and kudos upon ourselves but the truth of the matter is that we are overextended. 
We know that operations like this are necessary. We know that intervention was necessary. But we in New Zealand have to either come to terms with the deficiencies in our Defence Force increase the overall staffing and increase the authorised level of manning or accept that we can no longer play the role in the Pacific that other nations would ask of us. That may mean a loss of face but I suggest that in the interests of the men and women who serve in our Defence Force and police force it would be the honourable and honest position to take. Failing that we will continue to do what we are currently doing. We will ask captains to step up to major jobs we will ask corporals to step up to sergeant and sergeant-major jobs we will pay them a little bit extra for the time when they do that and when they get back to New Zealand we will bust them back down to the rank we can afford. We will then task them with level 2 or 3 positions and demand that they perform to levels of training for which they have not yet been prepared. I say these things as a warning. I say these things because I have said them before. All of these things are relevant in the third reading because they are points that were made at the time the troops were deployed to the Solomons and at the time that this legislation was deemed necessary. 
For some reason I see that Mr—what is his name that lawyer who defended that murderer up north? Mr Fairbrother and the two Government whips have no interest in this discussion. They sit there talking about what they will do in the weekend when urgency is lifted and ignore constructive criticism and comment. 
Hon Richard Prebble 
: No they’re swapping CVs for possible job opportunities. 
RON MARK 
: They are swapping CVs for possible job opportunities. Mr Fairbrother may have a job to go to but I am not too sure about that other young man. The point is that they ignore these comments at their peril and regretfully they ignore them at the expense of the good men and women in our defence forces and police force. 
I also want to say that it is rare that all the parties are unanimous in support of legislation. I went back through the Foreign Affairs Defence and Trade Committee report and without meaning to be churlish I did not see a minority report from the National Party expressing all the concerns that Mr Worth expressed. I am not being churlish but it is noted that if he had serious concerns they would have been written in the bill as a minority report and they are not at all. 
Judith Collins 
: He wasn’t on the select committee. 
RON MARK 
: The fact that Mr Worth was not on the select committee does not mean a thing. He could have been had he chosen to be. He could have asked to be subbed on and I am sure that one of his other members would have gladly let him have a seat. 
New Zealand First supports the passage of this bill. We pass on a flick in the ear to the Government for taking so long and we ask people to note that this legislation pertains to any future operations where police and civilian personnel may be deployed. I suggest that that will be an ongoing and regrettably a more frequent thing in the future. 
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. 
GORDON COPELAND (United Future) 
: 
 I rise just to signal once again United Future’s support for the Crimes and Misconduct (Overseas Operations) Bill. It seems to me that in the end this bill has struck a very good balance. On the one hand it ensures that New Zealand police and civilians deployed overseas by our Government in peacekeeping roles in serious situations such as they face in the Solomons have the protection of New Zealand law so that they are not subject to undue prosecution or arrest by people in the local situation and therefore exposed to its volatility when they are on active duty under orders from New Zealand. On the other hand it ensures that those people should they commit crimes in those situations do not escape punishment for those crimes but are answerable to New Zealand courts and the New Zealand nation under New Zealand law. 
I feel it is important that our nation pass this bill into law as we are doing this evening because I strongly suspect—as does Ron Mark of New Zealand First—that this will not be the last time we have to deploy police and civilians in peacekeeping roles within our region of the Pacific. Unfortunately we live in an area of the world that is subject to a fair degree of political instability in a lot of the developing and emerging nations that surround us in the islands of the Pacific. It always seems very tragic to me that people who live in paradise in terms of climate and surroundings nevertheless very often do not seem to be able to bring peace and stability to their own nations and their own political systems. So it seems to me that we will probably be doing this again and with that in mind I think it is very important that this law is in place so that we have a clear basis on which to go forward. 
With those few remarks I have pleasure in signalling our support for this third reading. 
JUDITH COLLINS (National—Clevedon) 
: 
 There have been some very good speeches tonight on this bill and it has been a pleasure to listen to some of the contributions particularly those of Richard Worth and Richard Prebble. Even Ron Mark was interesting and certainly I enjoyed Keith Locke’s speech. I found it very interesting and although Mr Locke and I do not always agree on everything it is always nice to hear his view. Often he makes some very good comments. 
Hon Ken Shirley 
: What about Mr Copeland? 
JUDITH COLLINS 
: I am however stunned that Mr Copeland has told the House tonight that this bill will provide protection for our New Zealand police and non - service personnel overseas. It does not. It does not provide one scrap of protection for our personnel overseas. This bill is all about making sure that those personnel can be prosecuted either in the country in which they are serving or in New Zealand. It does not say at all that they will not be subject to the laws of the country in which they are serving. In fact it says quite the opposite. It says that unless they are being prosecuted in that country they can be prosecuted in New Zealand for the alleged offence. So Mr Copeland has unfortunately made a very grave error. I am sure he did not intend to do so. When I see that the chairmanship of the committee was held by his own party leader the Hon Peter Dunne I would have thought Mr Dunne could have briefed Mr Copeland better on this bill. 
This is unfortunately one of those instances where the bill is only four pages long but has a seven-page commentary from the Foreign Affairs Defence and Trade Committee. That is an indication that an awful lot of talking was going on and maybe not enough listening—and certainly not enough reading if that is the idea that Mr Copeland has about the bill. 
I have to take up the point that this bill does not apply just to our efforts in the Solomons. It applies anywhere that our non-troops—police and other personnel—are serving in overseas operations involving peacekeeping unless they are operating under a United Nations force. Quite clearly the Government is signalling that there may be other instances possibly in the Pacific where New Zealand is called upon to make a contribution even if the United Nations—that great bastion of peacekeeping but not a lot else—is not involved. 
That does raise certain issues. Mr Richard Worth has made the comment that New Zealand traditionally likes to punch above its weight and that drew some derisory comments from a member on the other side of the House Mr Hughes. New Zealand does traditionally punch above its weight in matters international and sometimes that means it actually goes outside its own abilities and stretches itself way more than it can really afford to do. That point was well made by Mr Mark. This bill is not something we should be rushing through tonight in urgency. It could very well have been put through by the Government in the normal course of business as it certainly has the consent and approval of all members of the House. It is a bill that deserved to be treated in that way. 
It is a travesty that tonight on 31 March—although I note that Parliament thinks it is 30 March—we are putting to bed a bill that first saw the light of day last year after our people were moved into the Solomon Islands. I note the comments from Taito Phillip Field who I thought was very helpful in advising the House as to why this bill was necessary—that it was part of a joint agreement between Australia the Solomon Islands Government and New Zealand. I appreciated that comment and I thank him for it because I found it very helpful to know why the bill was needed when clearly it has not been thought necessary before. 
I was also very pleased with the Minister’s comments when she graciously noted my concerns over clause 5(2). I thought she handled that well. I am a bit concerned by the answer that parliamentary counsel gave me which was that that matter should be covered under clause 6. I am a little bit worried about that. The lawyer in me feels there is at least a credible argument for anyone acting for a person so charged under this legislation. I think that maybe that could be looked at further but I guess the Minister is probably thinking that all things going well the Act will not be needed for a long time and hopefully will not ever be needed. 
I take on board the concerns that Mr Worth had in relation to the New Zealand Bill of Rights Act and the fact that people covered by this bill will not have the same rights that they would have if they were arrested and charged with an offence in New Zealand. That is a concern because the people we are talking about are putting themselves in positions of danger at the Government’s request. They are doing so at the request of New Zealand so that we can all take pride in the fact that our little country is able to contribute in hopefully a helpful way towards other countries’ stability. I believe they deserve to have at least the same protection as someone who is accused of a crime in this country. 
Even though National members have those concerns about the bill we will support it and we will do so because it should have been put through months ago. Hopefully we can come back at a later stage and amend the legislation if any of the concerns we have raised do turn out to have been proven. 
Bill read a third time.