Diplomatic Privileges and Immunities Amendment Bill — In Committee 
Diplomatic Privileges and Immunities Amendment Bill — In Committee 
[Volume:615;Page:11242] 
Diplomatic Privileges and Immunities Amendment Bill 
In Committee 
Clause 1 Title 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 Obviously clause 1 is the title clause. I think it is quite clear when we read the title that it does not tell us anything about the bill. It just tells us that the bill amends the Diplomatic Privileges and Immunities Act but for what purpose? To achieve what? The Government should make titles more clear as to what the bills do. If that were the case it would assist the public in utilising our statutes. 
In essence as I understand it and as the Opposition understands it—and I hope the Government will correct us if we are wrong—this amendment bill once Supplementary Order Paper 190 is adopted will essentially do two major things. First it will extend diplomatic privileges and immunities to the International Criminal Court. That is a quite important matter for New Zealand and there is no reason to hide that fact. There is no reason why it could not be mentioned in the title. As part and parcel of that process the bill also extends such privileges to persons attending meetings of the Assembly of States Parties to the Rome Statute or its subsidiary parts—all part of the International Criminal Court. 
The second major issue in this bill once Supplementary Order Paper 190 is adopted is that it also extends diplomatic privileges and immunities to members and their families and staff of the European Commission. Again there is absolutely no reason why the title of this bill could not include that so that people could see at a glance what this bill is doing. It is not amending some of the procedures for establishing which countries what organisations might receive diplomatic privileges and immunities in New Zealand; it is simply adding to the group of States and organisations that do enjoy diplomatic privileges and immunities. New Zealand is adding to those the International Criminal Court and the European Commission. It is a shame that the Government does not have the title cover that. 
In future when the Government is establishing a title of a bill I strongly urge it to look at what the bill does and if it is at all possible incorporate some element of that into the title so that when people use the statutes they can see what on earth a statute is about. This legislation is not highly controversial but sadly the title as printed in this legislation gives us no guidance as to what it actually does. The Government ought to amend the title. There would not be any great difficulty in amending the title so that it could be seen what the bill actually does. As I have said without such an amendment the public has no guidance whatsoever. The bill could be amending the process or any aspect of that important principal legislation the Diplomatic Privileges and Immunities Act. That is simply not good enough. The title needs to be much more clear. I suggest that the Government should consider spelling out in the title with a simple bracketed addition—“ICC and EC Inclusion” or some such wording—what the bill does to make it clear to people using our statutes what is covered by this legislation. 
I do not think there is anything of great importance in respect of the title clause apart from the fact that the title is so vague as to leave people absolutely in the dark as to what this legislation actually does. Some might say that does not matter too much but it does matter. It is important that people understand whether this legislation just adds new members who will receive such privileges or changes the process significantly because those two issues are very different. If it were changing the process for establishing diplomatic privilege and immunities then there would be far greater need for detailed attention to exactly how it was being changed. But the title gives no guidance whatsoever so people are left in the dark as to what the legislation does. 
The National Party is prepared to support the bill despite that deficiency in its title. 
KEITH LOCKE (Green) 
: 
 I rise on behalf of the Green Party to support this bill as we did in the second reading. However in terms of the title debate I disagree with the previous speaker Lockwood Smith who said that the title does not indicate specifically enough what the bill is about. The bill is fairly broad. It does extend immunity to witnesses experts counsel and others involved in International Criminal Court proceedings. That immunity also applies to European Union representatives coming here or to international conferences of one sort or another that may be held here. The bill also refers to the OECD the World Trade Organization and the United Nations. As I understand it under this bill any conference can be designated as being appropriate for the level of privilege and immunity provided by this legislation. 
There is a certain lack of clarity in terms of the breadth of the title and what it contains. That is why I have moved an amendment to be discussed under the next clause—just to telegraph that—to make it clear that non-State actors who are participating in a specified international conference can be covered by this legislation. For example when New Zealand participates in an international conference often its delegation is made up of State representatives officially representing the Government and non-governmental— 
Dr Wayne Mapp 
: Is the member seriously suggesting that he is to give diplomatic immunity to Greenpeace? 
KEITH LOCKE 
: It may be—I would have to look back at the history of New Zealand’s participation in environmental conferences—that amongst the non-governmental representatives as part of the official delegation at an environmental conference and the Minister may comment on this that there was a representative of Greenpeace. At conferences on Antarctica representatives and specialists from non-governmental organisations have been involved in those issues. All that we are talking about here is that we want to make sure that all members of a delegation and perhaps even non-governmental organisation members who are not part of an official delegation that is coming to New Zealand may be covered. 
Under the bill and under the amendment I will be producing the Minister has the power to determine the non-State actors who could be covered by this legislation and given the privileges and immunities it confers. We are moving into an environment where State actors non-State actors and non-governmental organisations do work together on issues and we want to set a good model too. One thing that worried me recently just this year was reports from Indonesia concerning the official negotiators at an international conference on Aceh—they have had conferences like the one they had in Tokyo and they were having an official international conference to settle the Aceh dispute with negotiators from Gerakan Aceh Merdeka the Free Aceh Movement and the Indonesian Government. Those negotiations broke down at the dictate of the Indonesian Government. It said the conference was all off and it required that the Gerakan Aceh Merdeka representatives accept officially— 
The CHAIRPERSON (Ann Hartley) 
: I just bring the member back to the title please. 
KEITH LOCKE 
: I am just saying that the title needs to have the breadth—and here I disagree with Lockwood Smith—to cover the various possibilities that will be required if New Zealand is to involve itself properly in international conferences and if we are to give sufficient protection to people who are perhaps non-State actors or representatives of non-governmental organisations and not just the State actors. 
STEPHEN FRANKS (ACT) 
: 
 Like Lockwood Smith I think the Diplomatic Privileges and Immunities Amendment Bill is misnamed. I was a little sorry that the Hon Lockwood Smith did not return to the matter he raised when he first spoke on this bill in the first reading debate. He pointed out that new sections 10E and 10D inserted by clause 3 raised serious issues that the select committee should examine. Sadly the Foreign Affairs Defence and Trade Committee did not examine them. It did a pathetic job and did not look at any of the serious issues. This bill comes back to us with the title unamended despite the fact that the immunities privileges and exemptions the bill confers will go way past diplomats. The international agreement the Vienna Convention on Diplomatic Relations which the bill makes extension to or extends the benefit of begins with some very fine old drafting. It states: “The States Parties to the present Convention Recalling that peoples of all nations from ancient times have recognised the status of diplomatic agents” and “Believing that an international convention on diplomatic intercourse privileges and immunities would contribute to the development of friendly relationships amongst nations irrespective of their differing constitutional and social systems …” and then it goes on. 
The problem here is that this bill extends diplomatic privilege or immunity to people who may well be war criminals or thugs. They may be propagandists for war criminals or thugs. The bill states that when an International Criminal Court hearing is being held here the immunities extend not just to the judges—which we would think was common sense—but go past the prosecution the deputy prosecutor the registry staff the staff of those officers of the court or those necessary appendages of the court and they go to counsel witnesses victims experts and any other person required to be present at the seat of the International Criminal Court. Members should just think for a moment about whether the title of this bill would alert anyone to the prospect that the former President of Serbia Mr Milosevic could call as a witness anyone he wanted to call and could bring in a bunch of his thugs—his gangsters—who would obtain all the immunities provided under noble sentiment for the diplomatic agents of nations. 
 In other words this bill does what Labour so often does: it takes legislation with ordinary words that have a well-settled meaning and adds in provisions that mean in the end they could come to have totally different consequences. I believe that is something the Committee stage of the House should look at because the Foreign Affairs Defence and Trade Committee did such a hopeless job in the 35 or 40 minutes that it spent examining this bill. It did not consider just what the ramifications are when the immunities are extended to counsel witnesses victims experts and any other person required to be present at the seat of the International Criminal Court. Why should those people be immune from New Zealand law? Why should they not have to pay tax? If they are gangsters and crooks and they spend 6 7 or 10 months here while there is a court hearing on we can be sure they will live according to their normal custom. Why should those immunities be offered to those people at all? Is there any suggestion that they need the State to assist them in finding accommodation? In my opinion there is a whole host of articles in the Vienna Convention on Diplomatic Relations that should clearly have been made exceptions so that those people could not benefit from this immunity. 
The title of this bill should have been adjusted to reflect the fact that this is not a diplomatic privileges and immunities amendment bill but is a “Parties to Court Proceedings (Privileges and Immunities) Amendment Bill”. That is quite different from the old immunities and privileges that have become part of international custom and that have sometimes been tested almost to the point of destruction when members of some diplomatic missions have abused them. We all know about the members of such missions who routinely do not pay their parking fines or who scoot and run when they have caused traffic accidents and so forth. 
Hon PETER DUNNE (Leader—United Future) 
: 
 I want to make two points with regard to the title clause of the Diplomatic Privileges and Immunities Amendment Bill. Firstly I want to respond to some of the comments that have just been made and to draw the Committee’s attention to relevant sections of the explanatory note. This bill implements New Zealand’s commitments under the Rome Statute of the International Criminal Court. It is part of that agreement which we signed in October 2002 but have not yet implemented by ratification. The agreement sets out in detail—and I quote from the explanatory note—“the privileges and immunities that the International Criminal Court (the ICC) its Judges and others associated with the court enjoy while in the territory of a State Party on ICC business.” In other words the inclusion of the range of provisions that the member who preceded me referred to is not a matter of New Zealand arbitrarily acting to include certain people; it is a matter of New Zealand recognising the commitment it entered into when it signed the agreement in October 2002 to be party to the establishment of an international criminal court. That is the beginning and the end of that issue. So any talk of a need to amend the title of the bill in that instance is in my view spurious. 
The second point I want to make though does relate to the title of the bill particularly given Supplementary Order Paper 190 which now brings diplomatic officers of the European Union within the ambit of this legislation. In the second reading debate on this bill I raised a concern that we were dealing with only a part of the issue because there is a companion piece of legislation to the Diplomatic Privileges and Immunities Act called the Consular Privileges and Immunities Act which is word for word identical to that particular Act. 
Stephen Franks 
: That’s not for crooks. 
Hon PETER DUNNE 
: If the member bears with me he will get the point that I am coming to. I was about to say before he interjected that this issue is not so much of relevance to the International Criminal Court as to the amendment to the bill that comes in by way of the Supplementary Order Paper relating to the European Union because that amendment does potentially introduce the issue of consular representation by the European Union. 
Stephen Franks 
: That’s fine. 
Hon PETER DUNNE 
: I agree with the member that that is fine. But if the member just bears with me he will find the point I am making is that in bringing a provision into this bill that deals with diplomatic privileges and immunities it may well be in time we will need to make a similar amendment in respect of consular privileges and immunities with regard to any officers of the European Union. In that event it would seem to me more logical that the entire Diplomatic Privileges and Immunities Act and the Consular Privileges and Immunities Act which are currently separate pieces of legislation be brought together as one because the provisions in them are broadly identical. 
I make the point that if there was to be a change in the title of this bill it should be to reflect the fact that this legislation deals potentially with consular privileges and immunities as well as diplomatic privileges and immunities which is what the bill contains. That is not particularly relevant with regard to the provisions of the bill as they relate to the International Criminal Court and I do not imagine even in its most extreme flights of fancy that it will open anything of the equivalent of consular offices anywhere. But it is relevant potentially in the context of the extension of the provisions in the Supplementary Order Paper to include the European Union and any moves that that union may make once it establishes its office in Wellington—for example to establish sub-offices as it does in Auckland Christchurch or other parts of the country. At that point we would need to consider the issue of any potential privileges by way of consular immunity to be extended to those staff and as the law stands at the moment this Parliament would find itself having to pass separate legislation to give effect to those privileges. 
So my point is that maybe we ought to consider at some point in the future— and the title gives rise to the debate—wrapping the two pieces of legislation up in one and having a “Diplomatic and Consular Privileges and Immunities Act”. That would then allow all those things to be dealt with in one place rather than in the piecemeal way that inevitably is the case at the moment. Every time we wish to extend recognition to a country we do so firstly by way of extending diplomatic privileges and then at a subsequent point we determine whether we want to extend consular privileges. That seems to me to be an unnecessarily protracted process and I think the time is overdue for a review of it. That does not mean the Government would automatically extend both privileges to a country but it would have the option of extending either privilege. 
Dr WAYNE MAPP (National—North Shore) 
: 
 The title of the bill does not tell us what is really happening and indeed in the preceding debate with the exception of Dr the Hon Lockwood Smith everyone’s speeches went immediately to the substance of the debate. I want to speak a little bit on those points because they are important. I think it is inappropriate that the Government through a bill that is primarily about the International Criminal Court adds in at a very late stage the European Union through Supplementary Order Paper 190. There are no doubt good and valid reasons to do that but it is just that it is an unfortunate process whereby a statute being passed for one purpose ends up being used for another separate purpose. As a matter of legislative form that would be wrong. 
Last week there was extensive discussion about the role of the International Criminal Court. The ACT party in particular and Mr Franks especially has very directly stated that party’s opposition to the court. However on analysing new section 10D(2)(d) to be inserted into the Diplomatic Privileges and Immunities Act by clause 3 of the bill he may have a point and I would invite the officials and the Minister to look specifically at that point. 
I think everyone and perhaps even Mr Franks would concede that obviously there should be immunity for the judges of the International Criminal Court and for the prosecutor deputy prosecutor and registrar. Frankly that is common sense and there should be immunity for States parties too. However Mr Franks has raised an important point around counsel witnesses victims and experts. I would particularly focus on the term “witnesses”. I think as we know from observing the trials in The Hague currently many of the witnesses usually by some form of immunity agreement have agreed to testify against a superior officer even though that witness was directly implicated and involved in the crime against humanity usually a grave massacre. 
 In that situation whilst the immunity may be against prosecution before the relevant tribunal one would hardly think it necessary that the witnesses have a general exemption from the criminal law itself of the place of jurisdiction of the tribunal. Imagine for instance there was a hearing of the International Criminal Court in New Zealand. Quite clearly witnesses could be called. Some of those witnesses might have some involvement in the massacre. Surely it cannot be our intention—and maybe that was a matter overlooked by the select committee—to also be absolving those witnesses from criminal conduct in New Zealand or immunity generally from New Zealand law. So I would counsel the Minister and the officials to look at that point in particular. I wonder whether the Minister in the chair Marian Hobbs—or indeed Mr Franks—should be putting forward a Supplementary Order Paper relating to that clause. 
We certainly do not want to pass law that would make us a laughing stock and that—more than that—would enable people to perpetrate crimes. It is a grave matter. We must ensure our law is right. The next hour or so is the last opportunity to get this legislation right. There is no other opportunity except by an amendment bill or a Statutes Amendment Bill—but why wait? Why not do that work now in order to make sure we get this legislation correct? 
I understand Mr Franks’ broader objections to the International Criminal Court—and I generally disagree with them—but I think he has raised a very valid point on this particular issue and it would behove the Government to look carefully at it. I will take a further call when we come to later provisions particularly those amended by the Supplementary Order Paper in the name of Mr Locke—which is breathtaking in its implications I think we could say—but I will turn to those points later on. 
DAIL JONES (NZ First) 
: 
 This is straightforward legislation and I note that when the Foreign Affairs Defence and Trade Committee considered it its members noted that they had no matters to bring to the attention of the House. I really had not intended to speak on this bill especially on the title because it is so clear-cut. Nonetheless we seem to be having speeches from every party in the Chamber and it seems to me that that is a clear example of having too many members of Parliament in the Chamber. It is a clear example of the fact that the membership of this House needs to reduced to 99. That would reduce some of the time-wasting that takes place so often on the title. The reduction to 99 members is part of New Zealand First policy. I do not intend to take any more time because as I have said we support the bill and nothing further needs to be added to my speech. 
MOANA MACKEY (Labour) 
: 
 I move  
That the question be now put 
. 
Motion agreed to. 
Clause 1 agreed to. 
Clause 2 Commencement 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 Clause 2 again is a fairly simple clause. It is when we get to clause 3 that the substance of the bill can really be addressed and there are some issues that colleagues have raised that the Minister in the chair Marian Hobbs should respond to. Even in clause 2 there is something that the Minister could assist us with that would be of value to the Committee. Clause 2 states that the Act will commence on a date to be appointed by the Governor-General by Order in Council. When the bill was introduced we were told that the reason for commencement by Order in Council was that it was proposed that the Act should come into force on the same date as the agreement came into force in New Zealand. I presume that that agreement is the Rome Statute of the International Criminal Court. 
That seems to all make sense up to that point. The agreement was to enter into force in New Zealand on the 30th day after the date of the deposit of New Zealand’s instrument of ratification with the Secretary-General of the United Nations. What would interest the National Party and the Opposition is why the Government is now amending the commencement date. Supplementary Order Paper 190 provides that the commencement date will be changed. The amendment to clause 2 on that Supplementary Order Paper states: “To omit from lines 7 and 8 on page 1 the words ‘a date appointed by the Governor-General by Order in Council’ and substitute the words ‘the day after the date on which it receives the Royal assent’.” It would be helpful in order for the Committee to understand what is going on here for the Minister to take a call and explain the reason for that change. 
I accept that it is not a huge change. It is quite common for a commencement date to be the day after the day on which a bill receives the royal assent. There is no problem with that but this is a significant issue. The clause had originally been put in for a specific purpose which was to coincide with the date of the agreement coming into force in New Zealand. The legislation was supposed to commence on that day. It would be helpful for the Committee to understand what has changed. It is a not a big deal. I stress that it is not about the downfall of the Government—it is causing enough problems for itself in other areas without this legislation causing problems—but it is important that the Committee understands the reason for that change. 
For example has the agreement already come into force? When does the agreement come into force in New Zealand? When was the instrument of ratification lodged with the Secretary-General of the United Nations? Has it been lodged? What is the nexus now between the royal assent being given to this bill and the coming into force of the Statute of Rome agreement in New Zealand? The Committee deserves to know that. It is not a big ask of the Minister but it would certainly give us a better understanding of why that clause is to be changed. There must be some reason for it. 
The bill as introduced had a perfectly rational commencement date. It will now be changed and there is obviously some good reason for it. That change must relate in some way to New Zealand’s ratification of the agreement and it would be very helpful to the House—if we are to vote in favour of the commencement date as amended by Supplementary Order Paper 190 and I stress that we have no huge problem about that—to understand why. Why is the Government asking Parliament to amend the commencement date when it seemed that the original commencement date in the bill as introduced to Parliament was a perfectly rational commencement date that tied in with the ratification of the agreement—its deposit with the Secretary-General of the United Nations? What has changed? I am prepared to resume my seat in order to save time and enable the Minister to take a call and explain to us—because it may save some debating time—why the Supplementary Order Paper amends the commencement clause when that clause seemed perfectly rational. Something must have changed to make that amendment a sensible one. I believe that it would be courteous to the Committee—if the Minister expects it to vote in favour of the amendment—to explain why it has become necessary. 
Hon MARIAN HOBBS (Associate Minister of Foreign Affairs and Trade) 
: 
 I will try to answer that—and members can see that I am trying as I was taking advice from the officials. The bill as amended because of adding the European Commission in will come into force on the day after the date on which it receives the royal assent. Then following the passing of the legislation we will have to carry out two Orders in Council. Under the new provisions of this bill the European Commission will have one date and the International Criminal Court another. In order to make that coherent in the bill we amended it. 
STEPHEN FRANKS (ACT) 
: 
 It would be helpful if the Minister in the chair could also cast a little bit of light on another matter which I raise as a matter of speculation. I am told that staff for a European mission are hanging about in Australia waiting for the passage of this law and that the earlier starting date and desire for the bill to be put through urgently are because of those staff who are hanging about waiting. If that is the case I am a bit puzzled by it in the sense that literally thousands of fellow countrymen of people from European Union missions are in New Zealand at the moment without the benefit of any immunity. Many of them would probably be far more likely to run foul of our law than any of these earnest diplomats or sober-suited mission members. 
I am therefore a little anxious to find out why members of a mission if it is true would hover around outside New Zealand waiting for immunity before they dare set foot in this country. Have our relations with the European Union gone as far down as our relations with Australia? Are we in a situation where we have to commence this bill to entice these fellows and women into our country because they are anxious that we will take some kind of primitive revenge on them in the form that once happened to diplomatic agents? If it were true what would make them sit outside this country waiting for the passage of immunity legislation when surely it could only be a tidy-up at most? Is this the way our diplomats would act—that they would not go to a country until they had the assurance of immunity even if it were a country with which we had such friendly and hopefully fraternal relations as most of the countries in the European Union? 
This is something that I think the Minister really should reassure us about because if the commencement date is as vital as has been indicated by what I have heard about the need for urgency it suggests that our relations with the European Union must be very fragile and that our reputation as a civilised nation must be at extreme risk. I cannot imagine why we would have to rush the commencement of a bill like this—to the stage of putting a hurry-up clause in a Supplementary Order Paper—when all it does is tell people that when they are in New Zealand they will not be liable to our laws and that we will accord them reasonable dignity. I hope they would feel confident that we would do that for all European Union citizens irrespective of any law. I hope that members of a European Union mission would feel they were coming to one of the countries in the world where they could expect that the law would certainly not trouble them provided they acted in accordance with the norms of reasonable civilised Europeans. 
I would like the Minister in the chair to either confirm or deny that we do have urgency. It is a very odd thing for something like this a technical tidy-up to be so urgent. I am a little concerned that there may be something behind this—that there might be some members of a mission planning to come here whom New Zealanders want to offer an indignity to. Will this legislation protect a Greenpeace mission? Will it protect people whom New Zealanders might want to protest against? Is it conceivable that there are people coming here who fear they will be offered an indignity and who want the assurance that the police will be looking after them in the way that the police have had to look after the President of China and some of the other people who have come here and who have needed the reassurance of the Diplomatic Privileges and Immunities Act? 
That is the implication we get from a provision that suddenly speeds up the adoption of the effective date of this Act. The effective date of this Act as it was first stated was simply to come into force by Order in Council. Now it is to come into force on the day after the date on which it receives the royal assent. Yet there are machinery things to be done if there is to be an order made and the Minister could tell us whether the order would be promulgated on that same day. 
DAIL JONES (NZ First) 
: 
 I speak on behalf of New Zealand First and once again I cannot help but say that this is another clear example of why we should reduce the number of members in the House to 99. It was very clear in the Minister’s letter to I expect all political parties that during Commissioner Patten’s visit to New Zealand in 2003 he formally proposed that a delegation office of the European Commission be established in Wellington. That was subsequently endorsed by President Prodi and New Zealand is going ahead with that proposal. With the expansion of the European Union on 1 May 2004 by the addition of 10 new members New Zealand is today in a very vulnerable position. The more we do and the quicker we act to get the European Union into New Zealand and be able to have dialogue with it the better. 
The attitude of the National Party and ACT which want to delay something that is formal practice between civilised countries is quite extraordinary. For example just a little while ago the Deputy Prime Minister of the Czech Republic Cyril Svoboda was here. I am sorry that the Foreign Affairs Defence and Trade Committee was unable to meet him on the Monday as arranged but it is vital to New Zealand that we act promptly and that we do something to have the European Union here. 
We have discovered that sometimes the European Union sets out the terms and that we have to adopt reasonable civilised terms. Passing legislation that applies to all types of missions of this kind is a reasonably civilised way of behaving. The Government agreed earlier on that this was essentially an obvious and suitable occasion to amend the legislation to include the European Union in it. 
As I understand it members of the proposed staff are in Canberra at the present time and in terms of the Minister’s advice to all members of Parliament they are seeking the usual immunities and privileges that apply to them. New Zealand First supports this bill and looks forward to meeting with the European Union delegation as soon as possible. 
The question was put that the amendments set out on Supplementary Order Paper 190 in the name of Hon Phil Goff to clause 2 be agreed to. 
Amendments agreed to and clause 2 as amended agreed to. 
New clause 2A New section 9AB inserted 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 New clause 2A in Supplementary Order Paper 190 is the clause that will extend privileges and immunities to members private servants and family members of European Commission delegations. Supplementary Order Paper 190 has been tabled only today and members are trying to ascertain exactly what the wording in new clause 2A covers. 
The clause basically inserts new section 9AB and it has five subsections and most of what they are doing is reasonably clear. For example subsection (1) deals with issues of members of the delegation and covers the immunities and privileges addressed in the third schedule; subsection 2 covers the issue of I think the fourth schedule and things like servants and staff etc. The fifth schedule is referred to in subsection (3) which covers particular issues that are normal parts of diplomatic immunities and privilege. It covers families that form part of the household of members of delegations. 
But I would appreciate advice from the Minister as to exactly why subsection (5) is necessary. If we look at the original Act section 9(2) is contained in Part 2. Subsection (5) states: “An Order made under section 9(2)(a) in respect of the European Commission may in accordance with this section also confer privileges and immunities on members or on private servants of members of EC delegations”—that is fine—“and nothing in this section limits the application of section 9(2)(b) and (c) to persons associated with the European Commission.” 
 I am a little bit curious about why it is necessary to put that provision in there. Is that subsection (5) inserted there simply to avoid any doubt whatsoever or are we making some change by that? I do not see why new section 9AB particularly changes beyond what is specified the old sections 9(2)(a) (b) and (c) referred to in this new section 9AB. I realise it is a bit confusing with all those sections but I see nothing exceptional about what Supplementary Order Paper 190 is proposing in those new subsections under 9AB(1) (2) (3) and (4). They seem to be quite normal to me. 
The bit that I do not understand—and we have not had this Supplementary Order Paper for more than an hour or so—is why subsection (5) is required there particularly the last bit of it and what it means: “… nothing in this section limits the application of section 9(2)(b) and (c) to persons associated with the European Commission.” If we look at what section 9(2)(b) and (c) does we see that it confers on other persons representatives classes of officers and servants etc. certain privileges and immunities and I do not see why it is necessary to have that provision in this Supplementary Order Paper. 
I must confess that in the limited time we have had available I have tried to work through exactly what is going on there—I have had the statute out—but it is not clear to me. I am sure that if it is not clear to me it will not be clear to many members of the House because it is quite complex. It is worth the Minister in the chair the Hon Marian Hobbs taking the time to explain to members exactly what that provision is doing because it is not absolutely clear on the surface. 
Hon MARIAN HOBBS (Associate Minister of Foreign Affairs and Trade) 
: 
 The addition to that particular subsection—the three lines in subsection (5) that the member referred to—was added by the Parliamentary Counsel Office absolutely to avoid doubt that one can apply the exemptions under section 9(2)(b) and (c) to officials visiting New Zealand who are colleagues of diplomats already in New Zealand—if members can understand that. Let us say there is a diplomatic group the members of the French Embassy in New Zealand. A French delegation is visiting New Zealand so that provision applies to its members in just the same way. It is normal practice. Because that particular section was specifically designed for the European Commission the Parliamentary Counsel Office wanted to doubly ensure that when an EC delegation comes in to the EC office in New Zealand the legislation covers its members—just as it does in other diplomatic practice. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I would like to address that matter. The first point I note is that Supplementary Order Paper 190 which nevertheless the National Party will support was tabled today. The concern I raise is essentially procedural. As I noted in my earlier contribution this legislation is primarily about the International Criminal Court and a very vigorous debate about issues related to the proceedings was conducted last week and indeed when the bill was introduced. 
Today—literally—we have a Supplementary Order Paper that is four pages in length. It is of reasonably complex drafting and uses the vehicle of this bill by virtue of its generalised heading to provide diplomatic immunity to representatives of the European Community. In essence the European Community is being treated as if it were another State. There are good and proper reasons why that has to be done and that is why we will support the bill. But I have to say we have seen an egregious practice develop over time by which the Government uses Supplementary Order Papers well beyond the purposes that people might imagine they are used for. The normal practice is that a Supplementary Order Paper is there to correct a particular error in drafting or something of that nature. So essentially it stays within the subject matter that the select committee members themselves thought they were dealing with. That is the general philosophy of the Supplementary Order Paper mechanism and everyone recognises that it is necessary. 
There has been a practice however as in this instance of this Government using Supplementary Order Papers in a much broader way—essentially to put in a new purpose for legislation. I remind the Government of the trouble it got into some time ago when the Attorney-General in fact and the Minister of Justice sought to introduce not without notice on the same day a Supplementary Order Paper that introduced a new criminal offence—the offence of criminal defamation. The difficulty we have is that major changes are made to our law without reference to a select committee. Sometimes that is justifiable but the issue is more serious than that in this instance because the changes were introduced without notice. In this case we acknowledge that representatives of the European Community do need immunity but frankly that provision should have been introduced with a little more notice than 1 day—or on this very day. It could have been done last week. It could at least have been properly signalled last week in the House. It was not done in the way it should have been. 
So I raise this generalised point: this is a dangerous way of making legislation. It is a trap that leads inevitably to bad law which often then has to be undone. I invite the Government in the limited time in office it still has to think and not do that—not abuse the parliamentary process in that way. It brings this House the governmental processes and the integrity of our laws into discredit. The Government might be happy with that amazingly enough but on our side of the Chamber we are not happy with that kind of abuse of process as I regard it. The Minister may say I am overextending the point but there have been precedents in this Parliament that were dangerous that had to be backtracked on and that were a grave breach of the civil rights of the people of this nation. It is a practice this Government has yet to learn not to do. So I guess in its last 18 months we will see not only the panicked reaction of the last few days but this kind of egregious abuse of parliamentary process which frankly I would have thought under an MMP Parliament we have moved beyond. 
DAIL JONES (NZ First) 
: 
 New Zealand First was advised of this matter by a letter dated 16 February which we received on 17 February and which we actioned on 17 February. The matter was the subject of questions in the House last week. I know that Mr Simon Power when he raised a question on it during the second reading of this bill was unaware that the letter had been written. I would have thought that by now the National Party has acquainted itself with the letter written by the Minister and that perhaps at National’s caucus meeting or somewhere its members have familiarised themselves with its contents and know what would be coming before the House. I compliment the Government on contacting all political parties. I am disappointed that the National Party does not seem to take any notice of correspondence sent to it. Perhaps it thinks that the time has come when it can ignore everything and just look at the polls and that it does not have to do any work for the next 18 months. Well New Zealand First is prepared to continue working and looks forward to being in Government none the less after the next election because we will continue to work. 
Reading the letter I see that on page 2 the very points raised by Mr Mapp are covered. It talks about the agreement and about the European Commission seeking the conferral on it of various privileges and suchlike. All the matters raised by Mr Mapp are in the letter. My concern when I read the letter was to make sure its points were transferred to the legislation and I commend the law draftsperson on working so efficiently and promptly in such a short space of time. 
I reiterate the point I made at the beginning. We seem to have too many members in this Parliament. To have two National Party members trying to raise objections about something that is very simple indicates we have far too many members in this Parliament and 99 as suggested by New Zealand First is a much better number. 
 This is urgent legislation and the National Party does not seem to have grasped that fact. This legislation is important in order to have proper dialogue with the European Union. Dr Mapp and Dr Lockwood Smith do not seem to understand the way in which diplomatic situations work. It is a pity that they did not read the letter and it is a pity that Dr Lockwood Smith a farming representative does not represent the wishes of the farming communities. When countries such as Poland which has about 40 million people and a vast agricultural base join the European Union we will want to make sure they understand what New Zealand is all about. People might think little countries like Estonia Latvia and Lithuania are not very important but each of them will have a vote in the European Union. Although the voting patterns have not yet been finally decided because of the German and French views those countries will have votes and the sooner we make contact with the European Union and have contact with those countries the better. I recommend to members the very good Ministry of Foreign Affairs and Trade website on the matter. Of course other countries like Slovakia Slovenia Malta Cyprus and Hungary will all be playing a part in the new European Union and the sooner we get the European Union delegation here and have a dialogue with it the better. The sooner the National Party and perhaps ACT get on and support this legislation the better. 
STEPHEN FRANKS (ACT) 
: 
 I do not have any particular problem with clause 2A but I believe that this is a debate and I am prompted by a sense of respect for this House to rise and comment on the last speech. It appears that New Zealand First members those giants of international diplomacy have the view that we have no contact with Latvia Estonia and those other countries. We have diplomats accredited to Riga and those other capitals and they visit them regularly. They live in The Hague or in other capital cities and we have a lot of contact already. 
There seems to be a New Zealand First view that until we have passed this bill no one from the European Union dares set foot here which is a bit puzzling. It was a question I was asking the Minister in the chair the Hon Marian Hobbs but she has not chosen to rise and assist New Zealand First in its understanding of this matter so perhaps the Government deserves its fate if New Zealand First chooses to lengthen this debate. 
I will also comment on Dail Jones’ repeated assertions that when parties question the wording of a bill during the Committee stage it is evidence that there are too many MPs. Mr Jones might reflect on the fact that in other bills passed not too long ago New Zealand First voted for the insertion of clauses referring to the principles of the Treaty of Waitangi. New Zealand First also voted against amendments seeking the removal of those references. 
In this bill I understand that the National Party has moved what I see as a very sensible amendment and I would be willing to guarantee that New Zealand First members have not even bothered to ask what that amendment is. They will vote without having the faintest idea of what it proposes. They will vote because they have a view that the proper duty of members of this Chamber is to rubber-stamp what the Government asks them to rubber-stamp. They have a view that when their leader is miffed at National because it has dared to question his probity in a select committee for the next few weeks they will spend all their time voting for the Government and not reading the legislation. 
Instead of reading the English-Italian phrase book on his desk because he has a deep interest in speaking Italian Dail Jones who keeps repeating that we are simply wasting time might choose to read some New Zealand law. He might decide to have a little glance at the bill and work out whether the Hon Lockwood Smith Dr Wayne Mapp myself and others who have spoken are doing exactly what MPs should do in the Committee stage of a bill. Dr Mapp is conferring with the Minister’s officials—I believe the Minister must have given consent. He is looking for reassurance that there is not something in this bill that no one has noticed until now—a matter that could be readily fixed by an amendment at this stage which would save the time of the Chamber. 
When a member like Mr Dail Jones rises to deride the attention being paid to the detail of a bill and says that there are too many members of Parliament when those members take time to scrutinise a clause or move amendments then people are entitled to know that Mr Jones is perusing his English-Italian phrase book and no doubt planning his next holiday on the Riviera— 
Dail Jones 
: In Rome. 
STEPHEN FRANKS 
: In Rome he tells me. If there are too many members in this Chamber I suggest that we could easily make a few savings by dispensing with those who find that the English-Italian phrase book is the right thing to read when they are being asked to vote on a bill that confers privileges and immunities on people like those who would give evidence for Mr Milosevic; or in this case privileges and immunities on a mission from the European Union that apparently is too scared to come here until it is assured it will not be prosecuted. What have the members of that mission got to hide? What is it that they are worried they will be arrested for? 
Dr Wayne Mapp 
: Are they the new Soviets? 
STEPHEN FRANKS 
: The new Soviets yes! What taxes do they want to avoid? Are they too scared to bring their grog allowance through customs before they get this pushed through? The Minister is not explaining why it is so desperately urgent but presumably there is something that members of this mission lurking in Canberra really want to know that they will not be afflicted with when they come into New Zealand. We have not been told what it is but Dail Jones apparently knows that it does not matter. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 I seek the indulgence of the Minister in the chair the Hon Marian Hobbs to come back to the new clause 2A that we are supposed to be debating which inserts a new section 9AB and especially subsection (5). Despite my best efforts to sort out what on earth this subsection is doing I still do not have a clear understanding. While I appreciate the Minister’s last attempt to explain it it did not clarify it. 
This is not really a big political issue—this is what Parliament is meant to be doing: scrutinising legislation. Too often legislation passes through this Parliament that no member understands. It goes through and we get into trouble because no one understood what the hell it meant and we end up with courts interpreting it and being surprised by them concluding things that we did not expect. 
Let me be specific. What I do not understand about new subsection (5) is this: as I understand new section 9AB inserted by clause 2A that section will give the Government the power by Order in Council to confer diplomatic privileges and immunities on European Commission delegates officials and their families etc. Subsection (5) in new section 9AB refers to an order made under section 9(2)(a). Now what I do not understand is that the very immunities and privileges that we would be conferring here are made under the new section 9AB. That is what we are inserting here—a new section 9AB to confer these diplomatic privileges and immunities. Why has subsection (5) been tagged on stating: “An order made under section 9(2)(a)”? I understand that section 9(2)(a) is considered inadequate to do the job. 
One reading of the current section 9(2)(a) (b) and (c) would suggest that maybe they could be used to confer the necessary diplomatic privileges and immunities on the European Commission delegation. Theoretically it would be possible to use those sections but in order to make it absolutely clear that there is no doubt that we can do this new section 9AB is being inserted by this clause 2A that we are debating right now. Why do we then have subsection (5) attached to the end of it which we gather has not been attached by the Government through policy but because parliamentary counsel suggested that it should be tagged on the end? 
Is it tagged there because we already have some diplomatic privileges and immunities granted under section 9(2)(a)? Have we already used section 9(2)(a) because we do not yet have new section 9AB to grant some diplomatic privileges and immunities? Why is: “(5) An order made under section 9(2)(a) in respect of the European Commission” tagged on there when at the moment we are putting in this new section 9AB in order to grant privileges and immunities to the European Commission? That is what I am just not understanding. 
As I say there is nothing big and political about this; it is just an MP trying to do his job to make sure that what we are passing in the Committee makes sense. I want to be sure that we are not putting into our law something that simply does not make sense. I am a little bit concerned because I gather this is not so much about policy but is something that parliamentary counsel has suggested should be attached. I just wonder how much scrutiny it has had. I suspect that a Cabinet committee has not actually seen that bit. 
I would really appreciate it if the Minister could explain why subsection (5) is needed—indeed why an Order in Council might be made under section 9(2)(a) when this new section 9AB is being inserted to enable us to make orders to cover the European Commission. I am happy to resume my seat to enable that explanation to be given because if that matter can be explained quite clearly then we have no opposition to new clause 2A at all. 
The question was put that the amendment set out on Supplementary Order Paper 190 in the name of the Hon Phil Goff to insert new clause 2A be agreed to. 
New clause 2A agreed to. 
New clause 2B Amendments consequential on enactment of section 2A 
The question was put that the amendment set out on Supplementary Order Paper 190 in the name of the Hon Phil Goff to insert new clause 2B be agreed to. 
New clause 2B agreed to. 
Clause 3 New sections 10D and 10E substituted 
Dr WAYNE MAPP (National—North Shore) 
: 
 Prior to the passing of Supplementary Order Paper 190 which included new clauses 2A and 2B which really adds the European Union in now as having the same rights and immunities as a State as has been well pointed out I personally was not particularly aware that New Zealand had an enormous degree of difficulty in actually making representations to the European Community in the past and it to us. I think many of us are well aware that European commissioners have visited New Zealand in the past; officials of the European Commission have visited us in the past and it does seem that the idea of this legislation being necessary and urgent to pass so they can open an office is rather a long bow to draw given the 40-year history of the relationship between the European Union and New Zealand. 
The clause we are dealing with now actually relates to the privileges and immunities of the International Criminal Court. It is crucial that we deal with this clause properly because although much of it is common sense and obviously the immunities and privileges of the judges of the court the prosecutors the deputy prosecutors and registrar go without saying a significant question has been raised about witnesses counsel and so forth. 
I know that the Minister's officials are looking at that and I guess they will have a bit of time between 6 o'clock and 7.30 p.m. to assure themselves that the legislation is correct and make whatever necessary minor amendments are appropriate. The difficulty is that at the moment the legislation as drafted on the face of it places the witnesses as if they were of the same class and category as judges. I realise that if one goes to both the Rome Statute which I have done and to the Agreement on the Privileges and Immunities of the International Criminal Court that is not the case. But one actually has to go to those provisions to ascertain that. On the face of the legislation itself that is not apparent. I believe we need to pay greater regard to what the legislation is saying on the face of it the intent. 
So my suggestion to the Minister is that an amendment be drafted—and I suggest there is time before this legislation is voted on—that clearly indicates on the face of the legislation itself without the necessity of the reference to article 48(4) of the Rome statute or articles 18 to 22 of the protocol the separate situation of the witnesses counsel and so forth many of whom will be war criminals themselves gaining immunity to give evidence against a more serious war criminal; but they are in quite a different category from the judges prosecutors deputy prosecutors and registrar. It is simply bringing into the legislation what is apparent in the Rome Statute and the protocols. 
Legislation has an important role in public education. The public of New Zealand ought to be able to broadly speaking read on the face of the legislation its intent; and on things of this nature that is doubly important. I believe there is a relatively easy opportunity which I believe every member would endorse to just make that plain so that it becomes clear. I presume we will be dealing with Mr Locke's Supplementary Order Paper as a separate debate so I will leave my comments until then. 
The CHAIRPERSON (Ann Hartley) 
: That will actually be ruled out as being outside the scope of the bill. 
Dr WAYNE MAPP 
: Thank you. Well that is appropriate. It is worth knowing what Mr Locke wanted to do. He wanted to extend the scope of privileges and immunities to any member of a non-governmental institution as if the person were a diplomat or a member of the European Union or a State party or an official international agency—like the United Nations or one of the agencies of the United Nations. I would have thought that casual observation would tell us that that is wrong. The reason it is wrong is this: what is the purpose of privileges and immunities? The reason is primarily to exempt them from taxes the normal rules of criminal procedures—and I do not believe it can be possibly within the reasonable contemplation of this Parliament that we would in essence extend to private citizens those kinds of immunities. I know that Mr Locke has a particular political point he wishes to make but making that point means he is actually saying to members of non-governmental organisations that they could commit crimes with impunity. That is an extraordinary situation. Are we going to have the cars of members of Greenpeace parked up and down Lambton Quay— 
The CHAIRPERSON (Ann Hartley) 
: I am sorry to interrupt the member but he really does need to come back to clause 3. 
Dr WAYNE MAPP 
: But Mr Locke's amendment is to clause 3. 
The CHAIRPERSON (Ann Hartley) 
: No it is a new clause. I advised the member of that just to be helpful but he cannot speak to that now. The member needs to confine himself to clause 3. 
Dr WAYNE MAPP 
: Just as a matter of clarification will there be a separate debate on Mr Locke's Supplementary Order Paper which is actually an amendment to clause 3? 
The CHAIRPERSON (Ann Hartley) 
: The answer is no because the amendment will be ruled out of order. 
Dr WAYNE MAPP 
: That is why I have to be able to take the debate now on that point. 
The CHAIRPERSON (Ann Hartley) 
: No I need— 
Dr WAYNE MAPP 
: I wish to make the point that it is extraordinary that anyone could suggest that members of Greenpeace in their smoky old cars would be able to park up and down Lambton Quay freely without getting any parking tickets or whatever. 
The CHAIRPERSON (Ann Hartley) 
: I need to bring the member back to clause 3. 
Dr WAYNE MAPP 
: I just wish to— 
The CHAIRPERSON (Ann Hartley) 
: I am going to terminate the speech if the member does not do that. 
Dr WAYNE MAPP 
: I am just coming back to the issue because I have dealt with that other point now. I would ask the Minister that she does bring back to the Chamber after 7.30 p.m. an appropriate amendment so that it is plain on the face of the legislation without the need for reference to either the Rome Statute or articles 18 to 22 of the agreement that witnesses in the International Criminal Court would have particular immunity. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
 Dr WAYNE MAPP 
: I was talking about the desirability that the legislation should say on the face of it that the immunity and privileges of counsel witnesses victims and others shall be clearly different to that of the judges prosecutors deputy prosecutors and registrars of the court. I have had discussions with the Minister and her officials and they are of the view that it is not necessary to make such an amendment because there is sufficient reference to article 48 paragraph 4 of the Rome Statute and articles 18 to 22 of the agreement that that is clearly sufficient to show they are different. My objection to that is this: it does not say on the face of the legislation we are passing today that they are different; and they are different. Surely we want to be able to signal clearly on the face of the legislation that someone who has received immunity from prosecution acting as a witness for the worst criminals who have committed grave breaches of humanitarian law does not have the same kinds of immunities and privileges as the court itself and the representatives of the court. 
I do understand the argument of the Minister and I say that we have the opportunity here to ensure that on the face of the legislation when people read the statute itself they know there is a difference. A modest amendment will achieve that. It will reflect article 48(4) of the Rome Statute and it would be read directly into the legislation. I believe that that kind of approach would be beneficial to our law not just in this instance but generally where we do not often make these calls. 
Hon MARIAN HOBBS (Associate Minister of Foreign Affairs and Trade) 
: 
 As the last member just referred to I am not prepared to support the amendment that he is proposing. This is an argument that has also been put up by Mr Franks. What I understand them to be arguing is that whereas they can accept that judges and prosecution lawyers will be granted immunity under the International Criminal Court as is in the bill they have this terrible fear that if the court were sitting in New Zealand—and this is a really long bow to draw by the way—and had brought across Mr Milosevic which I think was the example that was given and witnesses to defend Mr Milosevic were being called they would automatically be given immunity. 
Let me make two things very clear. The first is that the immunity is limited and this is in the bill; and it is in the bill quite clearly by cross-references to the Rome Statute and to the Agreement on Privileges and Immunities of the International Criminal Court. Mr Mapp argues that we should therefore actually spell out the cross-reference by amending the legislation; I would say to him that that would be very tortuous. If in regard to the Hazardous Substances and New Organisms Act I cross-referenced to every different international agreement and wrote it out those regulations—and those laws are already 10 to 20 centimetres deep—I would be writing out legislation in full for ever. I do not think that that is good lawmaking and I do trust that there are international lawyers who are fully au fait with doing the cross referencing to the Rome Statute. 
The second reason I would give as to why I do not think this is necessary is that following this legislation if this legislation gets passed and the amendment becomes law there will be written an Order in Council which again is a public document. The Order in Council will spell out very clearly that such immunities will not be necessarily available—that they are limited—and they will not be there holus bolus to everybody who comes in and who may be a threat to New Zealand in the terms of someone witnessing for Mr Milosevic. I do think it is a kind of “dancing on the head of a pin” argument that we were given here tonight. I can assure anyone listening that New Zealand is secure under this legislation. 
KEITH LOCKE (Green) 
: 
 It is important to have immunities for all those coming into International Criminal Court hearings because I do not think we would otherwise have them held in New Zealand. They would not be delegated here if there were a danger of the witnesses experts or anyone being snaffled away and tried for other offences. So it is important to have the integrity of the court here or wherever in the world. But in speaking to sections 10D and 10E in clause 3 I say that the intention of my amendment I telegraphed earlier was in relation to those sections. I think it is important to fill in what Phil Goff talked about in his second reading speech—that there would be a process of extending protection to persons attending a specified conference. 
The essence of my approach in the amendment was that with important conferences such as peace conferences—and I referred to the question of Aceh in my earlier comments—we have to give respect and status to those people attending and that helps the peace process. As I said the problem with Aceh was that they had this conference in Tokyo and had negotiators from the Indonesian Government side and from the Aceh side. Those talks broke up on the initiative of the Indonesian Government and then the negotiators were arrested back in Aceh. There was not sufficient respect for the negotiators generated through the international community. 
One thing I would like to do if we are going to be a venue for peace conferences—there was talk the other day of our perhaps being a venue for a peace conference on Kashmir and one might have different parties coming into that conference—is to give them full status. It is at the discretion of the New Zealand Government. It is not something that the attendees automatically receive. But one might have the option to give the parties—not only the governmental parties but the non-governmental parties—a status that includes diplomatic protection and immunity as part of that process. One can imagine that with the Middle East as well. One perhaps would have to give status to the Palestinians as well as the Israelis. 
I also mentioned in my second reading speech the question of Algeria which is very current at the present time with Ahmed Zaoui being in prison here. We may be hosting some reconciliation conference here of the State party the Algerian regime and non-State actors like the official representatives of the Islamic Salvation Front (FIS) that Ahmed Zaoui belongs to. The FIS has official representatives in Sydney Washington and Switzerland and if they came here they might be given some status too. Mr Zaoui when hopefully he is out of prison shortly could participate in that sort of event as well. 
The intention of my amendment is that the Government can as part of its general approach of extending the bill beyond the International Criminal Court to international meetings—UN OECD World Trade Organization etc. or any specified conference—have a provision that non-Government actors can be designated as well whether or not those non-Government actors are part of an official State delegation. The question of Greenpeace came up earlier this afternoon; they may be part of an official delegation as non-Government organisation members particularly on environmental issues or non-Government organisations at a very high level. Amnesty International representatives for example might come from abroad to a particular conference we might be holding here and the head of Amnesty International from London perhaps could be given that particular status. I think the bill should be flexible enough to allow that. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 I raise a point of order Mr Chairperson. It would assist with the Committee’s debate of this bill if you could give us guidance as to what this particular debate is about. Prior to the dinner adjournment my good colleague Dr Wayne Mapp in addressing clause 3 referred to the amendment tabled by Mr Keith Locke that Mr Locke has just debated during the last 5 minutes but the Chair of the Committee ruled that my colleague was out of order and was not allowed to speak on that Supplementary Order Paper during the debate on clause 3. That is fine; the Chair ruled in that way. However you appear to have just allowed Mr Locke to spend the last 5 minutes commending his new clause 3A as part of the debate on clause 3. I think you can see the difficulty we are getting into. Either we are meant to debate Mr Locke’s rather strange new clause 3A or we are not. At the moment we have had two different rulings because the previous Chair got quite forthright with my colleague Dr Mapp and threatened to terminate his speech. If you could give us some guidance I would appreciate that. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the honourable member for that. The member is right and I am wrong. The previous Chairperson did pull up Wayne Mapp for debating that amendment in the way that he did. The ruling stands from the previous Chairperson and Keith Locke should not have debated that clause. He was out of order in doing so. I accept responsibility for that. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I raise a point of order Mr Chairperson. I wonder whether you would like to reflect on that ruling. I appreciate you feel that you must uphold the ruling of the Chairperson before the dinner break. Her ruling was such that Mr Locke’s amendment could not be debated because it was to be ruled out of order. However it does not seem to me that a Chair of the Committee can rule an amendment out of order before it has even been voted on. Surely that is a matter that takes place at the time of the vote. So long as an amendment is extant—that is until it is voted on—if it relates to a particular part surely it and any other amendments to that part can be debated just as Mr Locke has already done in this case. Otherwise the effect of that ruling would be that Mr Locke could not even firstly put his amendment in or secondly speak to it. That would seem to infringe on the privileges of members to be able to table amendments and debate them. I ask you to reflect upon that ruling because it will have the effect of limiting the rights of members to debate on amendments and Supplementary Order Papers that they may move. 
KEITH LOCKE (Green) 
: 
 I raise a point of order Mr Chairperson. I support that point of order but I was not in the Committee just before 6 p.m. so I am not sure why my amendment was ruled out of order. I am not sure whether that was justified but I would be interested to hear your ruling on Mr Mapp's point and also to hear why my amendment was ruled out. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank both members for their contributions. We will try to clear the matter up. A separate question would have had to be put on Mr Locke’s amendment as it proposes a new clause. However the question will not be put because the proposed new clause is outside the scope of the bill. To allow debate would require an instruction from the House as was the case for the Minister’s amendment dealing with the European Union. 
LINDSAY TISCH (Junior Whip—National) 
: 
 I raise a point of order Mr Chairperson. I am just a little unclear about when the decision is made that an amendment that has been lodged can be spoken to or is ruled out of order. The point is that Dr Mapp started to talk to the amendment. He would have probably given 2 minutes’ worth of discussion on that before the Chairperson at the time said he had to stop speaking about the amendment or she would terminate his speech. 
My understanding is that if an amendment has been tabled we can speak to it and it is only at the time of voting when you come to put the vote on a particular part or clause that you then rule it out of order and we do not get to vote on it. To my knowledge that is how we have handled amendments in the past and I think that when Dr Mapp spoke to the amendment he was right to do so just as Mr Locke has just spoken to his amendment as well without any interference from the Chair. 
I seek your guidance as to the procedures that we should follow because as Dr Mapp said there are actually two different versions. My view is that the decision is made when we come to vote and an amendment is ruled out of order. 
The CHAIRPERSON (H V Ross Robertson) 
: The reality is that Mr Locke’s amendment is not an amendment to clause 3. The debate on clause 3 must be relevant to that clause; it cannot deal with matters contained in new clauses. Mr Locke’s proposed new clause is not an amendment to clause 3. 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party effectively to endorse the proposed amendment that Mr Mapp suggested to clause 3. Mr Mapp’s purpose is to make sure that the Diplomatic Privileges and Immunities Act records that there is a difference in the kinds of immunity that are intended for diplomats and other heads of missions or heads of State who visit New Zealand and the kind of people who might be called and who might be in New Zealand if there is a court proceeding under the International Criminal Court statute. 
I appreciated the fact that the Hon Marian Hobbs took a call. She endeavoured to explain that the amendment was not necessary because it would simply repeat what she said is already contained in other legislation and in particular in the Rome Statute which is appended to the International Crimes and International Criminal Court Act. I do not think she dealt with the issue. The Hon Marian Hobbs did not actually tell us what it is or which provisions it is in those other documents that make this bill understandable. I have tried to follow the cross references. For example there is a cross reference to article 48 of the Rome Statute. It states: “Counsel experts witnesses or any other person required to be present at the seat of the court shall be accorded such treatment as is necessary for the proper functioning of the court in accordance with the agreement on the privileges and immunities of the court.” I do not know what agreement that refers to. Maybe the Minister can tell us there is a very straightforward answer but as I read article 48 it probably refers back to the privileges and immunities in sub-article 2 which relates to the court—that is judges the prosecutor the deputy prosecutors and the registrar. It states that they enjoy the same privileges and immunities as are accorded to heads of diplomatic missions. 
Our argument is that that is inappropriate for witnesses. It is probably inappropriate for some of the counsel whom war criminals might engage. It is certainly inappropriate for the category of people who are called “other persons required to be present at the seat of the ICC.” There is no reason why one of Milosevic’s former henchmen if here for a trial should be immune for example from the obligation to pay duty on his alcohol purchases or customs charges when he comes into the country. There is no reason why a thug should be immune from the ordinary criminal law. I am not saying that they should be exposed to New Zealand criminal law for what they may have done in the past but for what they do while they are in New Zealand even something as trivial as their traffic offences. I do not see any reason why we should be leaving open the possibility that a bunch of Milosevic’s henchmen could ignore even their parking tickets. I would like the Hon Marian Hobbs to explain to us just why that is excluded. 
 It may be that they are referring to another agreement. I cannot find the text of the agreement in the time I have available. But if there is a passage of the agreement that is separate from the Rome Statute that makes this clear it would be a reassurance to know that it did make it clear. 
Certainly sub-article 4 of article 48 which was mentioned by the Minister does not comfort at all. It simply says that they get the privileges previously referred to—I think that is what it is saying—in accordance with the agreement on privileges and immunities of the court. Unless the agreement says that there is something very specifically different for witnesses then we are putting into our law something that is unnecessary. It is a privilege that may come to embarrass. I fully agree that there must be a form of immunity for witnesses and for other people coming in. We do not want the embarrassment for example of someone moving to arrest General Pinochet if he were in New Zealand as a witness for the trial of some of the henchmen who might have done what they did all those years ago. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I move  
That the question be now put 
. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 I believe that in clause 3 which inserts new sections 10D and 10E into the principal Act there is an important issue at stake that is very closely aligned to what my colleague Dr Wayne Mapp and also Stephen Franks have been debating. What strikes me about sections 10D and 10E in particular is this. I have been a great supporter of the fact that under New Zealand’s constitutional arrangements the power to enter into treaties resides with the executive. I think that is terribly important. It is not the case in the United States and I believe the fact that Congress retains that power causes the United States some difficulties. Here we have a situation where this legislation will give effect in our domestic law to an international treaty the Rome Statute and that is fine. But we have always argued in supporting the power of the executive to enter into treaties that where those treaties affect our domestic law this Parliament should then have the power to decide whether it is prepared to amend our domestic law in order to accommodate those treaties. I would like the Minister in the chair Marian Hobbs to address the issue that the wording of new sections 10D and 10E circumvents the power of this Parliament to do that. If articles 18 to 22 of the international treaty—the Rome Statute—are changed through the process of change to that agreement those changes will automatically become part of our law in New Zealand without this Parliament having any further say in the matter. 
Let us say for example that at the moment—although this is not clear on the face of this legislation—articles 18 to 22 of the agreement set out a set of diplomatic privileges and immunities that Mr Franks and Dr Wayne Mapp may be satisfied with. It may set out a set of privileges and immunities that do not protect witnesses from breaking New Zealand’s criminal law for example or from not having to pay their parking fines or anything like that. But the point I am making is that if the international agreement is changed—in other words if the international treaty is changed—then because of the way that this legislation is worded our domestic law will be automatically changed. That I believe will bring into disrepute the power of our executive in this land under our constitution to enter into international treaties. I support that power; I believe it is a very important power. I have been New Zealand’s international trade Minister and I support the power of the executive to enter into treaties. But I think this kind of legislation which then enables those treaties to automatically amend our domestic law needs to be thought through quite carefully. 
So while I support our granting immunities and privileges to the International Criminal Court I think that the way it is done in this bill is not good. I am sure the Minister can see that if the articles of the Rome Statute or the articles of the agreement that is consequent upon that are changed by international agreement so will our domestic law be changed. As I look at new section 10D(2)(d) I see any changes to articles 18 to 22 of the agreement will automatically change our domestic law. If I am wrong I am happy to accept that but I would appreciate it if the Minister in the chair could explain why I am wrong. But if I am not wrong that is a serious issue. We have always argued in the past that where an international treaty changes our domestic law this Parliament should have the power to decide that. But according to the way this bill is worded instead of putting into the legislation what the international treaty has required New Zealand to do we have worded it in such a way that any change to that international treaty will automatically change our law. We simply refer to articles to 18 to 22 of the Rome Statute without setting out what they state. So if those articles are changed there is no reason that this Parliament would have the chance to pick up the change and look at it. There could be a change that states that witnesses can be absolutely immune from the criminal law of the country in which the International Criminal Court is operating. Let us say that became an agreed change to the international treaty. This Parliament would then have no say about how that affected our domestic law. 
Hon CHRIS CARTER (Minister of Conservation) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Noes 46 
New Zealand National 25; New Zealand First 13; ACT New Zealand 7; Independent: Awatere Huata. 
Motion agreed to. 
The question was put that the following amendment in the name of Dr Wayne Mapp to clause 3 be agreed to: 
to omit paragraph (d) of section 10D(2) and substitute the following paragraph: 
(d)Article 48(4) of the Rome Statute or articles 18 to 22 or both to ensure counsel witnesses victims experts and any other persons required to be present at the seat of the ICC so that they be accorded such treatment as is necessary for the proper functioning of the Court: 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 46 
New Zealand National 25; New Zealand First 13; ACT New Zealand 7; Independent: Awatere Huata. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
A party vote was called for on the question  
That clause 3 be agreed to. 
Ayes 109 
New Zealand Labour 52; New Zealand National 25; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 8 
ACT New Zealand 7; Independent: Awatere Huata. 
Clause 3 agreed to. 
New clause 3ARefunds or payments in case of exemptions from taxation 
The question was put that the amendment set out on Supplementary Order Paper 188 in the name of the Hon Phil Goff to insert new clause 3A be agreed to. 
New clause 3A agreed to. 
The CHAIRPERSON (H V Ross Robertson) 
: The amendment in the name of Keith Locke to insert new clause 3A is ruled out of order as it is not within the scope of the bill. 
Clause 4 agreed to. 
Bill reported with amendment.