Mercenary Activities (Prohibition) Bill — In Committee Third Reading 
Mercenary Activities (Prohibition) Bill — In Committee Third Reading 
[Volume:618;Page:14249] 
Mercenary Activities (Prohibition) Bill 
In Committee 
Debate resumed. 
Part 1 Preliminary provisions  
(continued) 
JILL PETTIS (Senior Whip—Labour) 
: 
 I move  
That the question be now put. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 This Mercenary Activities (Prohibition) Bill and in particular Part 1 that we are speaking to now is really important and should not be treated lightly by this Parliament. 
There are a number of things that trouble me about Part 1. The first is that clause 3 “Purpose” does not tell Parliament or New Zealand when the mercenaries convention was concluded or drawn up. It states: “The purpose of this Act is to implement in New Zealand law New Zealand’s obligations under the Mercenaries Convention.” I think it is relevant to New Zealanders to ask: is this a convention that was drawn up in 2003—last year? I do not think it is is it? Is it a convention that was drawn up in 2000? Was it drawn up in 1999 perhaps? That would make it 5 years old. Maybe if it were 10 years old it might still be relevant but if it were 10 years old that would mean it had been drawn up in 1994. But I do not think it was drawn up then. I think it was drawn up in 1989 if I remember rightly. 
The question that has to be asked of this Labour Government is: what on earth has suddenly provoked it to implement a convention drawn up in 1989 that none of our allies and partners has actually implemented? That was 15 years ago. 
Simon Power 
: I was in my second year at university then. 
Dr the Hon LOCKWOOD SMITH 
: My good colleague Simon Power tells me he was in his second year at university in 1989. In 1989 Dr Cullen had the chance to implement it. He was the Deputy Minister of Finance in the then Labour Government. 
Hon Dr Michael Cullen 
: I was not. Wrong again. 
Dr the Hon LOCKWOOD SMITH 
: He was. 
Hon Dr Michael Cullen 
: I was the Minister of Social Welfare in 1989. 
Dr the Hon LOCKWOOD SMITH 
: It was probably 1990; I beg the member’s pardon. He was a senior member of the Labour Government that could if it wanted have implemented this in 1989 or 1990. What has happened 15 years later that has suddenly provoked the Labour Government to implement this when clearly it is tricky legislation? Members should look at the countries that have actually implemented it: Azerbaijan Barbados Belarus Cameroon Costa Rica Croatia and the list goes on. 
I do not want to spend too much time on that because there is some important detail here that we need the Minister in the chair Judith Tizard to answer and I realise we may not get many more calls. What I would like the Minister to respond to is this. The Foreign Affairs Defence and Trade Committee put a lot of time into looking at the definition in clause 5. We heard from respected academics in this field of international law who advised us on the definition and on how the UN saw the definition and as to what other countries are trying to do about this issue. At the final analysis when the select committee was considering this legislation I asked the expert advisers to the select committee whether the definition would enable people who had not sworn an oath of allegiance to the country for whom they were involved in hostilities to be defined as a mercenary. 
This is an important issue and I would like the Minister in the chair to advise the Committee on it. Even with the changes made at the select committee to the definition of a mercenary is it correct the way the definition now remains that if a person in the employ of a country—a sovereign nation—to assist in resolving hostilities in that nation has not sworn an oath of allegiance to that nation that person would be caught up in this definition of a mercenary? I can tell the Minister that on 25 March this year which is the date of the last notes I have from the select committee on this very issue—clause 5 the definition of a mercenary—I asked specifically what would be required to make it quite clear that someone is employed to be involved in hostilities as distinct from someone who is an automatic part of the armed forces of a sovereign nation involved in hostilities. The answer I got was that the person really would have to have sworn an oath of allegiance. 
There have been cases in history—in fact we were advised that even the Secretary-General of the United Nations Kofi Annan considered sending mercenaries to deal with the disaster in Rwanda. This definition is hugely important and we deserve an answer from the Minister. 
Hon DAVID BENSON-POPE (Minister of Fisheries) 
: 
 I move  
That the question be now put 
. 
STEPHEN FRANKS (ACT) 
: 
 I look at the definitions in Part 1 with some curiosity. Having started my political career from the left we had a number of heroes. We believed that the people who went off with the International Brigade to fight Franco in Spain were heroes. Later I learned about the Flying Tigers who were the only help for the Chinese against the Japanese. I could name many others who had an honourable tradition an honourable career as mercenaries—right back to our Scottish forebears who fought for most of the kings in the Hundred Years War and the Thirty Years War in Europe. 
But now that we are in the Committee stage I look at this as a technical matter. The definition seems to say that it will be OK for New Zealanders to fight in rich countries’ wars but not in poor countries’ wars. If they are in a rich country’s war the amounts they will receive and be happy to receive might be less than those received by the locals. It seems to say that it will be all right for Fijians to go because they will take small amounts of pay but not for New Zealanders. It seems to say that the status quo can be preserved but not those who oppose a barbaric or dictatorial status quo. Curiously enough if a party that is fighting does not have any combatants and makes all its combatants mercenaries then that too seems to be OK because there will be no one else to be adversely compared with. This is a piece of legal nonsense as far as I can tell. The compensation test seems to me to be made for avoidance and made to suit the interests of those who are in power—the establishment—wherever this might be applied. 
Has the Minister considered whether there is a distinction between private gain and collective gain? For example it seems to me quite possible that we could make sure that payment goes out collectively and avoid the intended purpose of this provision if mercenaries are worried about what New Zealand is going to do to them. How will this Government distinguish the situation of the pilots and the engineers who go off to help a group like the Flying Tigers the next time such a group is needed somewhere in the world to protect desperate people from a barbaric enemy? Will they have to rely on the Attorney-General trying to commit in advance saying that they will not be prosecuted? What about when it is the Government’s own interests—as indeed President Roosevelt had in having the Flying Tigers operating in support of the Chinese who otherwise would have been left facing a barbaric invasion by the Japanese completely without international support? Why would a Government pass something like this bill in advance when it has absolutely no idea to whom it might apply and whether it will serve its interests? 
When I look at these definitions I see that they are badly drafted. I had a look to see which lawyers might have been responsible and I see that our committee membership seems to have been dominated by that worthy Peter Dunne with the assistance of Tim Barnett Keith Locke Martin Gallagher and the Hon Matt Robson—international statesmen all of them and all of them with great knowledge of how despotism has been beaten back in the past! We need an explanation from the Minister in the chair as to why those people would have decided to assist Helen Clark’s retirement plans. 
What possible reason is there for subjecting ourselves to a United Nations obligation like this when in the Pacific we have no idea of what we may need to support ourselves over the next 5 or 10 years? It may well be that it is in New Zealand’s interests to ensure that there is mercenary support if we do not want to have open conflict with whoever is supporting the other side in our backyard. If for example we fear that Indonesia is causing trouble somewhere and we do not want to take them on directly of course we will want mercenaries to be in there making sure it is not a walkover. Yet for the sake of her retirement job with the United Nations we sign up to this kind of tripe. 
I say to the Minister that we need an explanation of what lies behind bad drafting and behind definitions that are so palpably oriented to support the status quo. I would like to hear from a politician why the left which used to stand up for people in trouble now wants to help the enemy. 
GEORGINA BEYER (Labour—Wairarapa) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
The question was put that the following amendment in the name of Dr Wayne Mapp to clause 5 be agreed to: 
to add to subclause (2) the following paragraph: 
(c)within the meaning of subsection (1)(a) if he or she is employed directly within the armed forces of a party to the armed conflict whether or not they are paid more than any other persons of similar rank or specialty. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that Part 1 be agreed to. 
A party vote was called for on the question  
That Part 1 be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Part 1 agreed to. 
Part 2 Mercenary activities 
SIMON POWER (National—Rangitikei) 
: 
 I look forward to this being the first of my three calls on Part 2 because this is the part of the bill where we get to discover as a Committee of the whole House the actual I guess detailed impact of the disgraceful and sloppy drafting we saw in Part 1 relating to the definition of “mercenary”. 
Part 2 contains issues relating to recruitment—which I know my colleague Ron Mark from New Zealand First is very keen to cover in some detail in one of his three calls on this part—as well as the financing of mercenaries. I know my colleague Dr Wayne Mapp is also going to spend extensive time this afternoon working his way through those particular clauses. I also know that my colleague Dr the Hon Lockwood Smith is very keen to walk the Committee through the training of prospective mercenary clauses and the effect that those clauses will have. 
It is clause 13 though and the issues surrounding jurisdiction that most interests me. The reason for that is to return to the commentary on the bill by way of a link from the jurisdiction clauses contained in Part 2 and look at just how widely subscribed to this convention and therefore this legislation is. My colleague Dr the Hon Lockwood Smith got part-way through taking the Committee through those countries that have ratified this convention. At this stage of the debate it is worth asking the question that the National and New Zealand First members of the Foreign Affairs Defence and Trade Committee included in their minority report and it is this: why would we bring in domestic legislation which is ill-defined and sloppily drafted that gets us ahead of those countries that we would normally involve ourselves with at the point of armed conflict or the like in particular the US the UK and Australia that have not signed or ratified the convention? 
But we can all breathe a sigh of relief because although the US Australia and the UK have not signed this particular convention Costa Rica has. What a great relief it is for the New Zealand public to know that we will be signing up to legislation which fortunately for all of us Uruguay has considered important enough to sign up to! We simply ask this question and perhaps we could ask the question directly of the Minister: why would we as a country ratify sloppy legislation when the UN itself has said that the definition involved is inoperable cannot be used and is unworkable? 
So what do we do? Well the Labour Government might believe that this is political leadership. It also thought that telling the world that we lived in a benign strategic environment was political leadership. Well it got that one pretty badly wrong. I suggest that we now find ourselves signing up to a particular piece of legislation that no equivalent country to New Zealand has signed up to and that no country with which we have traditional and historic links has signed up to. 
The question for the Minister in the chair is simply this: why would we sign up to and pass domestic legislation for an ill-defined concept of mercenary at the same time that countries like Azerbaijan Barbados Belarus Cameroon Costa Rica Georgia Libya Mali Togo and the Ukraine have signed up to it? This is just ridiculous. The Minister sitting in the chair needs to take the opportunity to get on her feet and answer these questions. Why is New Zealand ahead of its traditional friends and allies on this issue? 
RON MARK (NZ First) 
: 
 I have the only answer to Mr Power’s question—which quite clearly the Government does not want to answer. It is that this Government truly does see New Zealand as being part of the Third World banana republic community. 
Look at us! Dr the Hon Lockwood Smith pointed out that this agreement which we are now legislating into our books was actually drafted and signed on 4 December 1989 and that one of the signatories to that agreement was Libya. Members should stop and think for a moment. How much credibility does one place on a piece of legislation outlawing mercenaries that was signed by Libya when on 21 December 1988 that country blew an aircraft out of the skies over Lockerbie? Yet here we are—accepting the Libyan signature as some sort of badge of honour and as something we should aspire to represent. I would say: “You are joking; you are seriously joking!” And on 17 April 1984 Police Constable Yvonne Fletcher was shot dead by Libyans. So I am expected to stand here and accept Mr Gadaffi with his administration as my guiding light and mentor and as the architect of this legislation—which I should endorse because he complies? We are not serious surely! This legislation is a piece of politically correct nonsense. It is unenforceable. 
Let us go through clause 7 “Recruiting person to be mercenary”. Does this Government seriously believe that those recruiters who come to New Zealand—looking to recruit former members of the police’s Special Tactics Group to go and work in Iraq—will front up to the Customs Service and say they are here to recruit people “for the purpose of taking part in hostilities in an armed conflict—”? Of course not! Recruiters will say they are here to recruit people to go and do some security work and if those people happen to be tied up in armed conflict then so be it. But no one will admit to it; everyone will lie. 
But the real tragedy is that the work those members of the New Zealand Police are currently doing in Iraq is dangerous good work. If we expect the Iraqi people to come out of that horrible mess which we witness every night on television then it will be through the hard work and dedication of men and women in uniform and of other men and women—international citizens—who are prepared to put their lives on the line for the free world and for democracy and who are paid to do so. I take huge offence at the bunch of trendy-wendy pathetic liberals who stand in this Chamber and criticise those people yet who have never once in their entire lives ever—or ever intended to—put on uniforms picked up rifles and gone out there to do the very same work that guarantees them the freedom to sit in this Parliament and pass the stupid sorts of nonsensical laws they pass. [ 
Interruption 
] 
Mr Benson-Pope tries to interject but I challenge him as to why he has never put on a uniform or served his country in a conflict. Mr Nandor Tanczos laughs. He enjoys the freedoms espousing his rather interesting views on life because the opportunity to do that was given to him with the blood and on the backs of men and women whose names are represented by the battle honours around the walls of this Chamber. I say to Mr Benson-Pope: “Don’t preach to me about wanting to serve New Zealand. Your track record is one of pacifism and peacenik activism.” 
That is what this legislation is all about. It is nothing to do with protecting New Zealand’s security interests. It is about politically correct nonsense—something that will make sure Helen Clark is a front contender for Kofi Annan’s job when the position becomes available because she will be able to go out there to campaign and say: “Look at all the wonderful legislation I passed in New Zealand when I was Prime Minister.” This bill is truly nonsense and rubbish from the Dark Ages. Yes we want to get rid of the Mike Hoares of the world and there are ways of doing that. I give the Government a clue: it should go and look at what the British Government is doing in respect of regulating the international industry that provides contract officers and personnel. 
JILL PETTIS (Labour—Whanganui) 
: 
 This bill is called the Mercenary Activities (Prohibition) Bill. Every day in Parliament we commence with a prayer although that is not so at the moment because we are in urgency and there is a slightly different format to the usual start at 2 o’clock. Part of the prayer includes the phrase: “putting aside all personal interests”— 
Dr the Hon Lockwood Smith 
: Private and personal. 
JILL PETTIS 
: I am sorry: “all private and personal interests”—and I say to Mr Mark who has just resumed his seat that I am sorry we did not have the prayer today. The reason I have stood to speak on this bill is that I have to tell Mr Mark I suspect the speech he has just concluded was so loaded with personal interest it has to have some sort of response made in order to achieve some sort of balance. This bill is quite simply— 
Ron Mark 
: I raise a point of order Madam Chairperson. I take that comment as a personal slur on my integrity and I do not mean to sit here and allow it to go unchecked. I demand an apology from that member now through you. I have taken deep offence at that; it is outrageous. 
The CHAIRPERSON (Ann Hartley) 
: The member has taken personal offence. I think the matter has been debated quite widely and the member himself has made reference to it. However the member has taken offence so I ask the member on her feet to withdraw that implication. 
JILL PETTIS 
: I am very happy to withdraw it. I have to say though that I suspect that the speech the member has just given bears very little relevance to what is actually in the bill and a lot more to his personal experience. This bill quite simply states that it is an offence to recruit use finance or train mercenaries or to participate in a war or act of violence as a mercenary. I was a nurse. I have a great passion for health issues. That member was a mercenary. He has said so himself in this Chamber. He has a great and passionate interest in issues military to do with mercenaries. If he takes offence at that I have to say there is something wrong with him. I did not do anything as a nurse that I am not proud of. I was proud to be a nurse and that is why I talk about issues to do with health with great passion and honesty—and no guilt. 
I also have to say that this bill focuses on the types of mercenaries who participate in wars and those who participate in concerted acts of violence including acts designed to destabilise Governments with the common thread being that the persons involved are motivated primarily by profit. My father and lots of my father’s generation went to war I believe—if there is a right reason to go to war and I think sometimes there is—with the motivation primarily to achieve peace; they did not go for profit. 
New Zealand has long opposed the use of mercenaries. There is nothing new in that at all. It is part of New Zealand philosophical belief. The involvement of mercenaries— 
Stephen Franks 
: What about von Tempsky? 
JILL PETTIS 
: That is just a bit before my time—as an additional party to a conflict is rarely if ever conducive to that conflict’s peaceful resolution. 
I remind that member that when he gets up on his high horse—or as someone said this morning: “He is more hack than horse.”—he should remember that some of the things he says are not necessarily objective. This bill is an objective long-term look at the situation. It is very good legislation and I ask that member to shuck off his hair shirt for a moment and look at this bill in the way it is intended. It is a good bill. 
STEPHEN FRANKS (ACT) 
: 
 I have three questions for the Minister in the chair the Hon Judith Tizard. The first is about clause 7. There is an offence there of recruiting a mercenary but it does not use the definition of “mercenary”. It seems therefore to have none of the benefits of the exceptions in that definition. It seems for example that someone who recruits a mercenary to work for the United Nations is still caught by the offence— 
Hon Judith Tizard 
: United Nations! 
STEPHEN FRANKS 
: If the Minister would take a call and answer that would be great but if she cares to look at clause 7 she will see it actually does not use the defined term. It restates the offence as recruiting “for the purpose of taking part in hostilities in an armed conflict” for profit and it seems not to provide for the exceptions that have been provided in clause 5. Clause 5 very importantly says that someone is not a mercenary if the work is with the United Nations or a peace support mission humanitarian aid the detection of unexploded mines and so forth. Why have we left it an offence to recruit someone to go and explode mines but it is not an offence to go and explode them? 
I do believe that this is another instance of the hopeless work of the Foreign Affairs Defence and Trade Committee chaired by Mr Dunne and dominated by the “nutty lefties” who are so blinded by their hostility to the profession of arms that they do drafting like this. I ask that the Minister seek the advice of her officials because it seems to me quite anomalous that recruitment is an offence to which the exceptions do not apply. It is quite possible that I have mistaken it and I would be glad to be told that I have because otherwise it seems ludicrous. 
I am also concerned to have an answer on extraterritorial jurisdiction to know whether it is possible that under the extradition treaty invoked in Part 3 someone can oblige the New Zealand Government to exercise its extraterritorial jurisdiction for the purpose of actually seizing and delivering someone who otherwise would not be taken. If this country is to be a haven for the sorts of freedom fighters whom in the past we have supported—the kinds of people who have stood up against despots and tyrants—we need to know whether under this United Nations treaty someone can force New Zealand to use the authority it is so foolishly asserting over its own people to pursue actions overseas that were not offences at the time or in the area where they occurred. It may be that there is a simple answer to that—I do not know. 
Now that I have got out those two questions I will go back to the bill. It is interesting that the offences of training a mercenary financing a mercenary and using a mercenary all relate to the defined term—clauses 8 9 10 and 12 all refer to the defined term—but not the offence of recruiting a mercenary. I suspect there has to be some explanation for that. It is very odd for it not to be qualified by the defined term. It may be that it was an accident of drafting or is due to haste. This measure has been brought in under urgency when it has been sitting around after being reported back by the select committee for nearly 6 months. Obviously urgency has struck. Does someone have to make a speech at the United Nations shortly? Does someone need an excuse to go there and shake hands at a cocktail party? What possible urgency does this bill have? Are we frightened that there might be some New Zealanders about to head off and we need to head them off? 
That would be the third question: why is this bill being dealt with under urgency? Why is it going through these stages under urgency? Is there some rational explanation or is it simply the Labour Government’s version of macho? When one does not believe in the armed forces one bullies people in Parliament—as the Labour whip attempted to do to Mr Ron Mark. 
Dr Wayne Mapp 
: A special cocktail party. 
STEPHEN FRANKS 
: It would be a very special cocktail party but the people would be mainly ugly. The member can console himself with that. 
Dr WAYNE MAPP (National—North Shore) 
: 
 As the previous speaker quite accurately indicated I guess in the next few days we will see a cocktail party hosted by our legation in New York. Those people who will be attending this fine cocktail party— 
Simon Power 
: Will the member be there? 
Dr WAYNE MAPP 
: Mr Goff is likely to be there I suspect. The representatives of Azerbaijan Surinam Togo Turkmenistan—in fact many of the “-stans”—will also be there. These places are of course great bastions of democracy. I have been reading extensively about the cult of personality that is becoming a feature in the “-stans”— 
Stephen Franks 
: They will have to say thank you because we are not going to send our mercenaries to overthrow them. 
Dr WAYNE MAPP 
: Yes indeed. This bill is an example of political correctness. The Minister in the chair took a call on the last part. I carefully noted when she said that the convention would not have applied to Mr Mark because he was in a support role. He was a company commander in an engineering role in the Sultanate of Oman. That is essentially what she said. She implied that he was not in a combat role and thus would not have been affected. But the reality as everyone knows is that the Sultanate of Oman Saudi Arabia and many other countries in the Middle East have had a practice of recruiting from the West—actually in collaboration with the British Government the French Government and other Governments—highly qualified specialists many of whom actually do fight directly in the front line because they are uniquely qualified. It is those people who are now affected. Everyone who follows these issues knows that it is a great concern of highly qualified special forces of Western armed forces that their personnel are being recruited essentially by these other countries often with the support of the foreign affairs departments of Western countries. Surely it is not sensible that the legislation applies to them. 
I know that the Government will say it does not apply if a person is a member of the armed forces. The problem—and this is our fundamental dilemma with the bill—is that there is ambiguity or conflict. On the one hand the bill states a person is a mercenary if he or she is recruited engaged in active hostilities and paid at a greater rate than other members holding the same rank. but one can hold the same rank only if one is actually in the armed forces. If one were in a private army then this issue would not apply. So the exclusion—that the bill does not apply to members of the armed forces—is contradicted by the inclusionary words. That is a point that Mr Power raised. There is a tension between who is a mercenary and the set of definitions of who is not a mercenary. The problem is that the two groups of definitions are actually in conflict. 
That is precisely why I put forward the amendment in the last part—to ensure that someone recruited into the armed forces of a nation but paid more than the locals could not be deemed to be a mercenary. That is our critical issue. Frankly the way that the legislation is now drafted and the way that the Government voted against that amendment leaves that fundamental issue in doubt. We on this side of the House have been consistently saying there is a very good reason why Britain the United States France Australia Canada and Germany—many of which countries supply military specialists to the armed forces of Middle Eastern nations and others—have not signed the convention. Because of the way that the convention is drafted it affects precisely that activity. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 In speaking to Part 2 of the Mercenary Activities (Prohibition) Bill there are a couple of serious matters on which I would appreciate the advice of the Minister in the chair. 
Firstly in Part 2 there are several clauses. The first clause 7 relates to recruiting a person to be a mercenary and I guess that is something. But clause 10 makes an offence of training a prospective mercenary. I would like the Minister to advise how on earth that can actually work. If someone in New Zealand is involved in training people for security work at that stage he or she has no idea whether the trainees will end up in armed hostilities that are defined by this bill as mercenary activities. I would appreciate the Minister’s advice on how on earth that is meant to work. If someone involved in— 
Jill Pettis 
: That’s like saying “I shot him by accident.” 
Dr the Hon LOCKWOOD SMITH 
: That is pretty dumb and about what I would expect from a Labour whip who is involved in making legislation like this. One has to ask oneself why such junk legislation is being passed by the Government under urgency. The only logical explanation I have heard came from Ron Mark who reckons that it is to help Helen Clark get the job as Secretary-General of the United Nations. Why else would the New Zealand Government be passing this junk? 
But I come back to the specific issue which is how legislation can contain something like clause 10 which makes it an offence to train a prospective mercenary. People involved in the legitimate business activity in New Zealand of training security forces have no way of knowing whether a trainee will end up involved in mercenary activities. If trainees do end up in mercenary activities a charge could be brought against the person who trained them because in training people who are now involved in mercenary activities he or she has committed an offence. How does that make sense? The person doing the training was doing perfectly legitimate security training. 
I am sure Ron Mark could name several such international businesses. Members should not forget that under clause 13 “Extraterritorial jurisdiction” this training could involve a New Zealander working overseas. If a New Zealander with an international company is involved in training perfectly legitimate people to be involved in security activities internationally—for example training people to be employed by the United Nations—yet some of those people end up in mercenary activities then that New Zealander is involved in training people for mercenary activities. As I read this legislation such people could be charged under clause 10 with training a prospective mercenary. 
I believe that Parliament deserves to know where the protections are. It does not make any sense at all to have a perfectly legitimate training business caught up in this legislation; we should not blame that business if a trainee chooses to get involved in mercenary activity. Members should not forget that mercenary activity is extraordinarily difficult to define. We know that from the attempts in Part 1 to define it. Members of Parliament may not be aware but the select committee heard that the kaiser charged the New Zealand soldiers fighting in World War I with being mercenaries. 
Jill Pettis 
: Well he would. 
Dr the Hon LOCKWOOD SMITH 
: The Labour member said that he would but that is part of the problem of defining what is mercenary activity. When it comes to clause 7 mercenary activity has been used to try to bring peace to war-torn parts of this world. I invite the senior Government whip to have a look at what happened in Sierra Leone because mercenaries were involved there to try to bring some stability to that place. World pressure against mercenaries caused them to be withdrawn and what happened? The place broke down into civil war. The Secretary-General of the UN himself looked seriously at bringing in mercenaries—clearly defined mercenaries—to try to help with the huge suffering in Rwanda which none of the members of the UN were prepared to do anything about. None of the members of the UN had been prepared to go into Rwanda or Somalia and it was going to take mercenary activity to do something. Part 2 is nonsense. 
RON MARK (NZ First) 
: 
 That was an excellent speech and I really wish the Government would accept that what we are arguing is that the definitions in this legislation make it unenforceable. It is not workable. It is feel-good. We all know what the Government is talking about. We have known about people like Mike Hoare for years. Yet there are ways in which countries can deal with those issues. In passing this legislation with all the ambiguity that is contained in it we scoop up into this net men and women who are doing excellent work—men and women whose morals virtues and integrity cannot be questioned. 
Look at the training. Take for example an officer with 20 years’ service in the New Zealand Army who was decorated for his service in Vietnam on behalf of his country served with the British defence forces and became internationally renowned as a specialist officer. He is recruited into a Middle Eastern country that is struggling to contain its internal security and border security problems. He is recruited along with a number of British personnel as a contract officer to train teach and command the Middle Eastern soldiers and soldiers who are recruited from other parts of the world. So he goes to Pakistan Nepal and India puts his net out amongst the wider community within those Middle Eastern countries and recruits people whom he then trains. 
The moment they become actively engaged in combat he is a mercenary. Despite all the good work he is doing to enhance the security of the situation in the Middle East and to help relationships between his country and the host country—the country that his company has been contracted to support with the knowledge of the British and New Zealand Governments—suddenly he is a mercenary and therefore is liable on conviction to face 14 years in jail. 
We have to get our heads up and look at the situation. The world has moved on. We know what the Government is talking about when it uses the very stigmatised term “mercenary”. Those are people who will go out and do despicable acts who are brought in only by money and greed who do not care about the ideological causes or about sovereignty and who go in for one purpose and one purpose alone. They do not care who their masters are; they just want to earn the big money. 
My message is that today those people are increasingly a very small minority. The vast bulk of the people employed as private defence contractors and security personnel are in legitimate companies that are well known and indeed are utilised by Western powers. The problem with this legislation is that it is so ambiguous that it scoops up all those people into the one basket thereby putting them in a situation whereby they can be prosecuted for the good work they have done because someone has slapped a label on their forehead and deemed them to be horrible nasty mercenaries of this type. 
I ask this Government to reflect on the quality of men and women that it trains and ask itself seriously whether it believes that suddenly overnight those men and women who take private contracts leave the shores of New Zealand and go to work for private British companies based out of Hong Kong or the Isle of Man have suddenly had a brain change. Have they suddenly become nasty horrible immoral people who only soldier for money? The truth is that no they have not. They go out to do something they know they can do to make the world a better place for other people and they do a jolly good job of it. That is why they are so widely sought after. 
We are throwing out a net with this legislation and its poorly defined clauses that will take in all these people. All it needs is for some malicious person to lodge charges or to lay a complaint and suddenly we will have people out there who have been doing very good work for the past 5 years—maybe in Iraq Kosovo Cambodia or Sierra Leone—suddenly facing criminal charges and a possible 14-year sentence. It does not matter where I look through this legislation it is impossible to enforce easy to circumvent and so ambiguous that it should not be passed. 
The question was put that the following amendment in the name of the Hon Phil Goff to clause 7 be agreed to: 
to insert in paragraph (a) of subclause (2) after the words “a party to the” the word “armed”. 
A party vote was called for on the question That the amendment be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Amendment agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Part 2 as amended agreed to. 
Part 3 Miscellaneous provisions 
SIMON POWER (National—Rangitikei) 
: 
 I do wish to take a short call on Part 3 because there is a consistent thread running through this legislation of abysmal drafting and of ambiguity over interpretation. It is worth saying that not only do we have this continued debacle with the definition of mercenary and the non-definition of mercenary but under Part 3 we have what I have to say is one of the most hilarious clauses I have read in my time in this Parliament—short though it has been. That clause is clause 14 relating to the “Certificate as to States Parties under Mercenaries Convention”. It is worth reading that because it provides good humour after a day and a half in the Chamber under urgency. For listeners it is worth getting a sense of the complete waste of time that legislation like this is when this clause is read through slowly. So here goes: “A certificate that appears to be signed by”—I do not know what that means—“or on behalf of the Secretary of Foreign Affairs and Trade and that states that a State is or is not a State Party to the Mercenaries Convention is sufficient evidence of that matter unless the contrary is proved.” Now that is just a shambles. What kind of legislative debacle— 
Opposition Member 
: A junk clause. 
SIMON POWER 
: —and junk clause as my colleague calls it is that? “A certificate that appears to be signed by”; so it might not be signed but it might appear to be signed. In other words— 
Lindsay Tisch 
: The Prime Minister is good at this sort of thing. 
SIMON POWER 
: That is right. It could be that the Secretary of Foreign Affairs and Trade decided to put a pen to paper but changed his mind. So it may well be that we have an ink dot on the signature line which is not a completed signature but the paper may appear to be signed. It could well be that the Secretary of Foreign Affairs and Trade changed his mind halfway through his signature or accordingly signed on behalf of someone else—something that members opposite will know a fair bit about. 
It strikes me that that is a bizarre way to describe the execution of a certificate. It is pretty straightforward: the certificate has either been signed or it has not been signed. It is like the words: this is a definition of a mercenary and this is the definition of somebody who is not a mercenary. So why does the clause simply not say: “a certificate that is signed by the Secretary of Foreign Affairs and Trade” instead of saying “appears to be signed by”? What a load of nonsense! 
Then it goes on to state that “a State is or is not”. So now we have a certificate that appears to be signed by somebody and that could mean a State is or is not a party to the convention. It goes on to say that if it appears to be signed and is or is not a member State of the convention— 
Ron Mark 
: On behalf of. 
SIMON POWER 
: —on behalf of—then that is sufficient evidence. That is just ludicrous. But there is more. The clause goes on to say that all of that means there is sufficient evidence of the certificate—unless the contrary is proved. Well does that mean: “No it does not appear to be signed because I am going to prove that it was not despite the fact it could be signed there being sufficient evidence of the fact that somebody else signing on behalf could have signed to say the State is or is not a member of the convention on behalf of somebody.”? Now if that is the type of legislation that is running through this Parliament together with phraseology like: “This is not what a mercenary is but the legislation is designed to capture a mercenary—which we cannot define—so we will tell people what it is not.” as well as certificates that are not signed or purport to be signed— 
Ron Mark 
: On behalf of. 
SIMON POWER 
: —on behalf of somebody else is sufficient evidence unless one can say it is not sufficient evidence in which case whether it is signed on behalf of or not means the certificate could or could not be complete depending on whether or not it appears to be signed by somebody. 
Ron Mark 
: Unless the contrary is proven. 
SIMON POWER 
: That clears it up beautifully! So if I want to travel overseas and become a mercenary I now know my rights—completely! [ 
Interruption 
] That is true; compared with the Associate Minister of Transport I should do a far better job as a mercenary. The one thing we do know about this legislation is that it is sloppy and ambiguous. That is no way to determine whether or not mercenaries are indeed mercenaries depending on whether certificates have been signed as being sufficient evidence on behalf of others whether or not the contrary intention is proved depending on whether or not the certificate purports to say that a State is or is not a State party to the Mercenaries Convention. 
To be fair this is an absolute shambles. For the Government to pursue legislation that is indeed so messy so untidy and so ambiguous is—to be blunt—hopeless when in fact it is the Government’s responsibility to produce clear unambiguous legislation to cover these types of issues and it has not been able to do that in this case. And this clause proves that beyond reasonable doubt. I see that the Minister in the chair Harry Duynhoven is very keen to engage on this issue— 
Hon Harry Duynhoven 
: No no. I just want to ask: is this member a lawyer? 
SIMON POWER 
: Is this a call? 
Hon Harry Duynhoven 
: If the member will yield. 
SIMON POWER 
: I am happy to yield to the Minister so that we can continue to debate Part 3 once he takes the call. 
The CHAIRPERSON (H V Ross Robertson) 
: Can I just say that if the member yields the Minister can reply only to the questions asked and that is it. It is not a means of transferring a call. 
SIMON POWER 
: I am very happy to yield to the Minister should he wish to answer the question. I am happy to transfer the call. 
The CHAIRPERSON (H V Ross Robertson) 
: Yielding is not a means of transferring a call. The Minister can only answer questions; that is it. 
SIMON POWER 
: Well I will just carry on. Therefore I think it is very clear to the House that the Government has failed on two counts with this legislation. 
Jill Pettis 
: Just two? 
SIMON POWER 
: Well there are more but we will stick at two at the moment I tell the senior whip. The first is that the Government has been unable to define what a mercenary is. The second is that it leaves the entire world not only New Zealand uncertain as to what the “certificate that appears to be signed” actually means. 
RON MARK (NZ First) 
: 
 One has to laugh does one not to read such a clause. I tell Mr Power that I tried to read that same clause three or four times and I think his point is well made. I do not for the life of me understand why the Minister is not now scratching out an amendment to that with the assistance of his staff because it is an absolute nonsense and it is no wonder that lawyers make so much money out there when this Parliament produces paragraphs such as that. 
I want to come now to clauses 15 16 and 17. It is interesting that under the heading “Investigation and prosecution of offences against Act or referred to in Mercenaries Convention” clause 15(1) states: “Sections 16 and 17 apply whenever the Attorney-General receives information that there may be present in New Zealand a person who has committed or is alleged to have committed an offence against article 2 article 3 or article 4 of the Mercenaries Convention.” Then we get into a whole series of questions that I guess have to be asked and I am going to ask them of the Minister right now. 
The first is: what happens when the Attorney-General is told that there is a person in New Zealand who is recruiting people who someone believes will be mercenaries—and therefore he is a mercenary—what is to be done? Do we go and knock on the hotel door of the said chap who might be from the United Kingdom or the United States or who might well be here at the behest of the CIA or of any of Britain’s intelligence agencies looking to recruit good competent highly professional New Zealanders with good moral values and ethics to go and—say for example—chuck the Soviets out of Afghanistan after their having invaded Afghanistan? 
 Will the Attorney-General of New Zealand bring to the courts in this land an American or a British officer or a person operating or working on behalf of the British or American Governments? When the New Zealanders who have been say in Iraq doing the work that they are alleged to have been doing are found what will we say? “The State where the offence was committed was Iraq.” Oh OK. “The State in relation to where the offence was directed or attempted was Iraq.” OK. “The State in relation to which any person against whom the offence was directed or attempted is a person of the kind referred to in article 10 blah blah of the Mercenaries Convention who was Saddam Hussein.” Oh OK. So we will prosecute that person for overthrowing Saddam Hussein. What is worse is we will prosecute that person for working with legitimate Government agencies as a private contract officer to overthrow some other tinpot dictator in a country that he or she has invaded or taken control of. 
Will the New Zealand Attorney-General seriously go head-to-head with intelligence agencies of allies who are seeking to make the world a better place through using New Zealanders of good moral and ethical values who have served 25 or 30 years in the New Zealand Army and are veterans of Sierra Leone Cambodia and East Timor? Will we seriously throw those people up in the courts prosecute them under these clauses and slap them in jail for 14 years? What will be the reaction of the average Joe Blow on the street to that? I suggest that the average New Zealander would say that it is ridiculous and absurd. It is unworkable and there is the potential in the bill for a diplomatic row or argument we do not ever want to have particularly if on the same weekend the Prime Minister is over there trying to negotiate a free-trade agreement I suggest. 
What would then happen to any of the allegations in this spurious ambiguous legislation—which might even have been maliciously brought—when this Government engaged in another round of free-trade discussions with the United States? Well I will tell members what would happen. They would be thrown out—or would they? Would this Government and Attorney-General seek to make an international political row over such an issue and accept the consequences of that? Now I am waiting to hear the answer because the procedures that are laid out here raise—to me—the potential for a huge diplomatic problem. So we will arrest some of the people who come here looking for good professional honest officers and NCOs of integrity to go into places like Iraq to try to rebuild it. 
Will we tell police officers with exemplary service records that if a charge is laid against them because they have been actively engaged in combat actions whilst being paid more than local people and not being a national or a citizen of Iraq the moment someone lays a charge back here—despite the fact that those officers might well have been recruited by a British company at the behest of the British Government—we will now charge them and all the people involved? I do not think so. I think this is rubbish. 
STEPHEN FRANKS (ACT) 
: 
 I was very sorry that in the debate on the last part the Minister chose not to answer the serious question I had raised as to the definition and in this part the question is material again. That is because I am not confident—and I do not have the background in this area of law but I am sure the officials available to the Minister do—that New Zealand is not setting itself up in clauses 15 16 17 and 18 to be deeply embarrassed. Members will recall the embarrassment for the British Government when General Pinochet was detained essentially at the request of as I recall a Spanish court at the instigation of activists in Spain and the last thing the British Government wanted was to be in head-on conflict with any of the factions in Chile. But in the end the British Government had enough international clout to do as it thought best for Britain and the British courts have enough reputation for being independent that—after Lord Hoffman was removed from the House of Lords bench—it was very hard to suggest that anything other than the most honest view of the law was being applied. 
But what if a similar circumstance were translated to New Zealand? For example what if the Chinese made a request to us if it is a party—and I am not sure China is a party but I will assume it is—to hold someone here who it claims has been a mercenary in Tibet or it claims is recruiting or raising finance to cause trouble for China in Tibet? How would that go with New Zealand? Why would we want to put ourselves into a position where there is an instrument that gives the other State the expectation that it can call on us to chase the people it does not like? What about the Russians in relation toChechnya the Indonesians in relation to Timor or Aceh or the Kanaks in New Caledonia? There are any number of people whom we have relationships with—for example the French Government—who might one day call on us to exercise powers under this legislation that we would much prefer not to have. 
I have not heard or seen any justification for this. The Foreign Affairs Defence and Trade Committee’s feeble report does not tell members how it weighed those kinds of considerations—if indeed it did. There is absolutely no consideration from the perspective of New Zealand’s interests as opposed to some abstract interest of the international community so who is looking after New Zealand in relation to clauses 15 16 17 and 18? 
Then I saw that clause 21 means that this legislation is included for the purposes of the Extradition Act of 1999. Now I do not know whether that is a benefit—I come to this as any ordinary member reading these words for the first time—but I would have expected to be told and I believe that the Minister ought to tell members whether this does mean that China could call for the extradition of some poor soul who has offended it in Tibet or in relation to Tibet. So I do not think we should be voting for this. I despise the Greens and I despise them deeply in matters like this. Those members are very very prone to self-righteous speeches in this Chamber about looking after the benighted and those whom most Western World States consider to be terrorists. But when it comes to a bill in this Parliament that could be used to suppress freedom fighters or to harass people whose politics are unpopular with the Greens’ mates the communists—no; they are in there boots and all supporting it. 
I reckon members will see them vote for this thing unamended. They will vote for Part 3 because Part 3 is the bit they want. They want to be able to hand over people to ensure that the Governments they favour can claim the right to deliver up those who might offend them wherever they may hide. We may find it could be as embarrassing as somebody’s bodyguard coming with a foreign dignitary to New Zealand who is suddenly hit with a request that he or she be intercepted arrested and suffer the fate of General Pinochet. Whatever one may think of him it was a grave misuse of power to have arrested that man who had come to Britain for medical treatment for acts that were not illegal at the time he committed them in his own country and for which he had an exemption. To turn the law into an instrument of foreign policy like this when it could rebound on a weaker country that has got itself offside with the international community is stupid. 
A party vote was called for on the question  
That Part 3 be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Part 3 agreed to. 
Schedule 
A party vote was called for on the question  
That the schedule be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Schedule agreed to. 
Clause 1 Title 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 We are debating clause 1 “Title” of the Mercenary Activities (Prohibition) Bill. I believe that Parliament deserves to hear from Labour members as to why on earth they seek to pass this legislation. We have already established during the Committee stage of the debate that the agreement the legislation seeks to enable ratification of here in New Zealand was drawn up 15 years ago. The first question I believe Government members should answer is why after 15 years in which New Zealand has not seen fit to ratify that agreement we are now seeking to ratify it. One answer could be that the world has suddenly realised that it needs to be ratified. Maybe one answer could be that countries like the United States of America Australia the United Kingdom or any number of European countries—France perhaps or Germany—all suddenly see that there is a real problem happening in the world and say we should ratify the agreement in order to sort the problem out. 
But that is not the case. Among the countries that have ratified it our closest allies would be Italy and Belgium. They are the only Western countries I can find on the list of those that have ratified or implemented the agreement. Why on earth New Zealand wants to be in bed with Libya has really got me whacked. OK Libya has at least abandoned its nuclear weapons programme in recent times—we should at least give Colonel Gadaffi some credit for that. Or maybe we should give the United States some credit for it because if the United States had not got rid of Saddam Hussein Gadaffi sure as hell would not have given up his nuclear weapons programme. Still I am blowed if I know why we want to get into bed with the few countries that have implemented this agreement—including Libya. Maybe the fact that Togo has implemented the agreement is the reason the Labour Government says we should implement it too. 
There is an even more important issue. Let us not make light of this. The final statement of the majority of the Foreign Affairs Defence and Trade Committee in the commentary on the bill reads: “There are suggestions including from the Special Rapporteur on Mercenaries”—that is the special rapporteur of the United Nations—“that the Convention should be amended or a new convention negotiated to recognise the role of private military companies and regulate them accordingly. We understand that this is a long-term objective that will be pursued through UN processes and is an issue that the Government may address at a later stage.” Given that the Labour members on the select committee acknowledge that the United Nations itself does not think the convention is satisfactory and the UN’s own special rapporteur says it will not work why is Labour now passing this bill under urgency here in New Zealand 15 years after the convention was initially drawn up when no other countries that we are involved with in any defence activities are doing the same thing? Parliament deserves an answer on that before the Committee stage is abandoned. 
I believe that the Minister in the chair Harry Duynhoven or another Labour member—or a United Future member as I note United Future supports this legislation too—should explain to the Committee why when the UN itself says the convention is not satisfactory New Zealand intends to pass this legislation to ratify it. That makes no sense at all. If the UN had said that although there had not been a big take-up of the agreement and there had not been widespread ratification it still believed it was important to ratify it for certain stated reasons maybe then there would be an argument for doing that. But where is the evidence of that? The UN is telling us that the convention is not very satisfactory and that something else should be done but Labour says it knows better than that and will ratify it. 
RON MARK (NZ First) 
: 
 There again is the point. I plead with the Government to listen to the arguments. The bill’s ambiguity is such that maybe it should be titled—since we are discussing the title—the “We’re so very confused that we don’t know how to define what a bad mercenary is in comparison with a good one that we’re going to pass legislation that tries to define what a mercenary is not although we’re not really sure that we’ve got it right and the United Nations is telling us that it too doesn’t believe the definitions are sustainable stand up stack up or are enforceable Bill”. What does it take to get people to listen? As I think about Mr Franks’ speech I am drawn to remember the representations that have been made to Parliament by the Falun Gong. Is that what the Greens want? Do the Greens now seriously want this legislation to be used by the Chinese to have the Falun Gong arrested and tried or extradited because the Chinese deem those people to be a subversive element within their country that is engaged in recruiting mercenaries—or as the Falun Gong may say in recruiting converts to a belief? Is that what the Greens support? 
This legislation has so many hooks in its back end in Part 3 that can be misused to cause us huge international embarrassment that it is not worth passing. The dangers are there and they have been flagged. The Greens have probably another hour to consider Part 3 in particular seriously before they cast their vote. The “United Poodle” party—well who knows? It is a case of sit up beg lie down roll over and play dead because Helen Clark says so. The United Future members will just do as they are told. They do not have a coalition agreement and if they had any agreement of any worth this bill would not be going through for one reason and one reason alone: it is unworkable. It is too ambiguous. Dr Lockwood Smith was perfectly correct when he said that the Labour Party acknowledged as the commentary on the bill states that the Special Rapporteur on Mercenaries’ and the United Nations’ views on the convention are clear. It is not enforceable; it is not workable. It is too full of ambiguity. The title of this bill should be “You’ve Got to Be Joking Mercenary (Prohibition) Bill” because it is not workable. 
I re-emphasise that when talking about Part 3. The countries that have not ratified the convention as Dr Lockwood Smith said include Australia. Who are our major trading partners? Who are the people we most rely on for our growing economy? Australia the United States Britain Singapore! Excuse me have any of them signed this treaty? Do any of those countries allow regulated private companies to work in the security field? Yes they do. Have they signed the treaty? No they have not. Will we therefore put ourselves in the situation where one of those people who comes here to recruit people to go overseas work for that person and do legitimate good work will be prosecuted arrested and detained by us? It may well be that that person is a representative of one of a country’s internal security agencies. It may well be that that person is a representative of a company that the Government has ticked and approved as being a company with moral values that does nothing to jeopardise the interests of a free and democratic world and therefore he or she is the type of person who should be contracting personnel to go into Iraq Sierra Leone or Cambodia. But those people will not fit within this definition. 
Even worse we now have a definition of what a mercenary is not and a sort of a definition of what a mercenary is and those definitions do not quite stack up. Once we get into the courtrooms and we are dealing with vexatious litigants how will a person prove he or she does not fit within the mercenary category? The room in this legislation for dragged-out legal actions for diplomatic embarrassment and for the inappropriate harassment of Falun Gong members is so broad so wide and so available as to make it not worth passing. 
I would simply sayto members that they should walk with caution take a breather take time out and reconsider this bill. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Clause 1 agreed to. 
Bill reported with amendment. 
Third Reading 
Hon HARRY DUYNHOVEN (Minister of State) 
 on behalf of the 
 Minister of Foreign Affairs and Trade 
: I move  
That the Mercenary Activities (Prohibition) Bill be now read a third time 
. This bill implements into New Zealand domestic law the International Convention Against the Recruitment Use Financing and Training of Mercenaries which entered into force in 2001. The bill criminalises the conduct of mercenaries and the recruitment use financing and training of mercenaries. It allows New Zealand to demonstrate to the international community that we are committed to stamping out the use of mercenaries and to show our support for the growing concern internationally that the use of foreign mercenary forces can impede the exercise of the right to self-determination and also violates human rights. New Zealand has long recognised the impediment that mercenaries can cause to the peaceful resolution of conflicts. In the Bougainville crisis New Zealand opposed the use of foreign mercenary personnel by the Papua New Guinea Government. We argued that the crisis would be resolved only through a comprehensive peace process and we are pleased that has happened. It only confirms our belief that mercenary activity should be prohibited. 
Although there has been some criticism of the definition of “mercenary” used in the convention it is nevertheless important to become a party to the convention in order to plug a gap in New Zealand’s law. This bill covers what we would term “true” mercenaries—that is what people have traditionally envisaged by the term “mercenary”. The convention is not aimed at covering all the people who may sometimes be loosely referred to as mercenaries in today’s world. That is outside the scope of the convention and outside what we see as the appropriate focus of this bill. Our concern is to put in place provisions that proscribe the form of mercenary activity that has been recognised as being of greatest concern. We see this bill as a useful and viable first step towards encompassing at least those generally regarded as true mercenaries. 
 Some people have claimed that the definition contains too many elements. Of course in the context of this legislation it is intended that only a small number of people will be caught by the definition so it needs to contain more rather than less detail in order to ensure that it does not incidentally catch others. Changes have also been made by the Foreign Affairs Defence and Trade Committee to obtain greater clarity in the definition. For example—and this addresses some of the points raised by Opposition speakers—it is now spelt out that people on peacekeeping missions who are carrying out mine clearance delivering humanitarian aid and providing policing and security services that protect individuals or property are not mercenaries. There have also been calls internationally for the convention to be amended so that the definition more accurately reflects today’s reality including the use of so-called mercenaries in criminal activities such as arms and drug trafficking. By becoming a party to the convention through the passage of this bill New Zealand will be better placed to actively contribute to international discussions around the appropriate scope of the term “mercenary” and to influence any negotiations concerning amendments to the convention. 
The bill also includes measures relating to international cooperation in investigations and prosecutions which are important to ensure that individuals can properly be brought to justice. It was pointed out during the select committee process that few of the usual like-minded countries to New Zealand have become party to the mercenaries convention. Although that is true New Zealand needs to make its own decision as to whether it wants to ensure that mercenary activity is outlawed in this country and whether the obligations in the convention accord with New Zealand’s view that the use of mercenaries should not be supported—as they do. Some concern has also been expressed by members that this convention is not relevant. In reply to that comment I would say that mercenary activity needs to be tackled at the international level and domestically and that this convention provides us with the opportunity to manifest our commitment to that end. An issue was also raised—and I depart from the Minister’s notes here—by Mr Franks. I think Mr Franks’ concern has been reduced as a result of his conversation with the officials and myself in that he has been told we still have protections for those who might otherwise be extradited. 
Accordingly the Government supports this bill. We do not want New Zealand to be seen as a safe haven or a soft spot for mercenaries and this bill will ensure that that does not occur. I commend the bill to the House. 
SIMON POWER (National—Rangitikei) 
: 
 I thank the stand-in Minister the Hon Harry Duynhoven for his comments on the third reading but they still have not resolved for members on this side of the House the three or four main issues that we raised at the second reading and extensively throughout the Committee stage. If the Committee stage had been a tennis game I would say that it was probably 40:love to the Opposition because I do not recall a Minister sitting in the chair taking a call and answering any of the issues raised by Opposition members during that time. 
There are four outstanding issues. First is the definition of “mercenary”. The Hon Harry Duynhoven tried to convince the House in his contribution on the third reading that it was all a bit tough and a bit tricky and that we did not really want to capture anybody who was not whatever a true mercenary is so for that reason the definition had to be somewhat more extensive. Members on this side of the House say to him that if that is the case the term “mercenary” should be defined properly. The Minister should not then move on to include a definition of what is not a mercenary that is larger than the definition of what is a mercenary. We say to Government members that we will continue to oppose this bill to its dying moments because the Government has been unable to convince us that the bill is sure enough unambiguous enough and certain enough to dispatch our concerns about the definition of “mercenary”. 
 The second issue raised by members on this side of the House is simply that we are about to pass domestic legislation ratifying a convention that puts us way out of step with our traditional allies the US Australia and the UK and finds us in company with countries such as Azerbaijan Barbados Belarus Cameroon Costa Rica and as my colleague Ron Mark pointed out Libya. It seems to members on this side of the House that signing up to such important conventions should be done in around or slightly ahead of in some cases our traditional and historic friends and allies. That is not the case here. 
Jill Pettis 
: This man changed the National Party policy at a regional conference. 
SIMON POWER 
: Screeching from the other side of the Houses does not make the member any more likely to address the issues that have been raised by Opposition members. The member who is screeching from the other side of the House should take a call and answer some of the concerns we have listed very carefully very methodically and very clearly. 
The third thing we are concerned about is the continuing trend of this Government to put into domestic law conventions and international agreements that have very marginal relevance to our own domestic circumstances. We have highlighted that problem throughout the passage of this debate. The last issue I wish to raise relates to the certificate as to State parties under the mercenaries convention. In the break the officials managed to advise me with the blessing or consent of the Minister that the wording contained in clause 14 is a standard-recipe clause used in these cases. I would simply say to members of the Government who are about to vote for this legislation that just because it is done all the time does not make it right. 
The Government has failed to convince members on this side of the House that this definition of mercenary is sufficiently tight clear and unambiguous to create good law. The National Party will continue to oppose this legislation and will vote against it in the third reading for those reasons. 
RON MARK (NZ First) 
: 
 I rise in the third reading debate to once again make it clear that New Zealand First opposes this bill. Let me make it very very clear for the benefit of the senior Government whip: New Zealand First is not opposed to dealing with the people the Government is choosing to describe as the true or traditional mercenary. We are not opposed to that. We are not opposed to outlawing renegade private armies that fight for fortune and not for ideology the integrity of the sovereign State or its borders. We are not for those people. We will assist any Government that brings to this House sane legislation that seeks to deal with those people. However we are against legislation that is ambiguous—so ambiguous and so broad in its net that it scoops up people the Government says it does not intend to scoop up. Indeed the Government by its own words in the inclusion of amendments to this legislation has gone out of its way to try to deal with the problem the United Nations says exists with the convention—that problem being that it is hard to define what a true mercenary is. 
The Government has recognised that problem to the extent that it has tried to include paragraphs—big paragraphs—to try to define what a mercenary is not. The problem is that those definitions are still ambiguous. In this world which has moved on since 4 December 1989 the use of private armies and private companies in security work has absolutely exploded across the world. Legitimate Governments sovereign States and democratically elected leaders to this day are using more than ever private companies to put people in to assist countries to preserve their democracy and sovereignty through the use of private contracted defence personnel. Our reading of this definition wraps those people up and improperly so. 
The Minister raised a number of issues with the true mercenary one being a big argument. I have consistently asked the Government what the urgency is about this legislation and who brought it to the Table. When we asked the officials at the Foreign Affairs Defence and Trade Committee nobody could answer the question: why are we doing this? What is the pressing urgency? When I ask why we are debating this bill under urgency a very clear reason should be given as to why this matter must be dealt with now but there is not. It only leaves the cynics to presume that maybe other motives are in play. If the Government wanted to deal with arms and drug trafficking that would be fine—so does New Zealand First—because that is about organised crime. I believe that every member in this House would want to bring down organised criminal networks. We do not need this legislation to do that. We need better security relationships with our traditional allies and with our trading partners and that brings me to my next point. 
Who signed up to this treaty? Whom are we throwing our hat in with? Libya! Excuse me! Libya signed the agreement on 4 December 1989 when on 21 December 1988 it blew a Pan Am aircraft out of the skies over Lockerbie killing everybody on board. Is that a credible signatory? The only thing this legislation does is bring our integrity into question. Why should we be hopping into bed with people like Gadaffi and telling the world that he is a leader in the campaign again mercenaries? He is not never has been and never will be. For us to be throwing our hat in alongside of him brings disservice and discredit to New Zealand not credit. Who else is a signatory to that treaty? Azerbaijan Barbados Belarus Cameroon Costa Rica Croatia Italy the Maldives Qatar and Saudi Arabia. Traditionally they have always used contract personnel and to this very day they still do. 
The next question I asked the officials was what compliance test had ever been conducted on these outstanding leaders of the international community—like Gadaffi and Croatia. What compliance test has been run over them? What measures and what tests were conducted to see that they are indeed complying with the convention that they would have us support? The answer is none. There has been no compliance test and no measure and we have no idea of their level of collusion with mercenary companies that the Government describes as true mercenaries. We have no idea. We are signing up to fluffy feel-good legislation that we cannot enforce and if we do we will run the risk of scooping up people whom we should not be attacking. 
The test of the credibility of this convention lies in the fact that the United Nations itself questions its value. The United Nations wants to work with the Labour Government of Britain towards regulating the industry and so gaining better control in a more legitimate and appropriate fashion. For the life of me I do not understand why this Labour Government which looks so fondly on Tony Blair as a wonderful Labour leader and a fine example of Labour Governments does not listen to him. This Government should pause for a moment to listen to what Tony Blair’s Government has to say. Tony Blair has put his finger on it. He said that that is not the way to deal with the issue that we have quite rightly recognised. That saddens me—no it does not really because I know a heck of a lot of people out there who used to vote Labour and who do not agree with this nonsense. They do not agree with the logic. They do not agree with passing law under urgency that is ambiguous unenforceable and therefore meaningless. 
I shall go to the final area of concern from New Zealand First’s perspective. I refer to the international implications of New Zealand now seeking to be party to or allowing itself to be forced into arresting detaining deporting or extraditing people whom another country says are mercenaries who are not here recruiting converts to Falun Gong but who are recruiting mercenaries who have the aim of going back to China and undermining the sovereign State of China and its legitimate Government. What a horrible position to now be put in—and all for what? There is no gain here. One risk that lies in here and has not been dealt with is the diplomatic risk of embarrassment at being at loggerheads with the people with whom we trade and on whom our economy depends all because we want to be alongside Libya Qatar Saudi Arabia and Mauritania. Well I am sorry but that is not logical. That does not make sense and this House has better things to do. This Government has better legislation which New Zealand First will support sitting in the wings and waiting to come to the House. Instead it is here dealing with this nonsense. New Zealand First opposes this legislation. 
LARRY BALDOCK (United Future) 
: 
 I rise to indicate United Future’s support for the third reading of this legislation. We listened to the debate throughout the Committee stage and did not hear any arguments put up by Opposition speakers that would cause us to change our position of support. The bill was in large part guided through the Foreign Affairs Defence and Trade Committee by the Hon Peter Dunne who has a vast amount of experience in foreign affairs and we in United Future stand behind him in supporting the third reading. 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to record our opposition to the passage of this bill that criminalises mercenaries. As earlier speakers have said this bill has nothing to commend it to New Zealanders. There was apparently an argument that appealed to the majority on the Foreign Affairs Defence and Trade Committee that the bill is in the interests of the world community. It is not easy to see even then why that should be so. 
We heard nothing from Government members during the Committee stage to reassure those of us who are concerned about the very long tradition of brave people who have made their living by fighting—sometimes for ill and sometimes for good—other people’s fights. We heard no comment about or response to the fact that this law would have criminalised the people who manned the Flying Tigers which provided the only assistance the Chinese had for some years in their battle with the most awful foe the Japanese. There was no attempt to explain why New Zealand should put itself in a position whereby had this law been in force at the time of the Japanese aggression on China we would have been obliged to arrest and hold those pilots should they have come to New Zealand and to hand them over to the authorities in the north of Japan—that is as the situation seems to me when I look at this legislation. 
I heard no answer to the concern I expressed that if there had been technical experts who were being paid more than Franco’s troops they could not have assisted the International Brigades. I met a woman—I think it was last Friday evening—who must have been 85 and who had been in the International Brigades. She was a New Zealander passionately committed to the cause of socialism and when Franco’s troops assisted by Nazi planes were overrunning Spain she took herself off—to the great alarm of her father—to assist in Spain. She happened to be a nurse so would not have fallen foul of this law. But anyone who had been prepared to defend Guernica from the German planes would have been paid just as the Flying Tigers were. 
Hon Marian Hobbs 
: They didn’t get paid. 
STEPHEN FRANKS 
: We have this awesome stateswoman Marian Hobbs saying that they would not have been paid. Why were the Flying Tigers paid when they were trying to defeat the Japanese? Does that mean that because they helped the Chinese patriots against Japan they should be criminals but that those in the International Brigades should not? Of course with any money the International Brigades would have employed people to help with servicing. As in almost every modern war people are needed to service equipment and those people would be caught under this legislation 
I asked also for clarification as to how this bill could be in New Zealand’s interests when it exposes us to the potential for requests from big and menacing northern neighbours—perhaps from Indonesia which does not like our attitude to Aceh. If there are some New Zealanders out there who fall foul of the Indonesians or if there are some Aceh refugees down here who are raising money to try to defend their kith and kin this measure says we should hand them over. 
Why is that in our interests? Why is it in our interests even to give such countries a weapon to beat us around the ears with? Sure the officials can say to us that we do not have to and that the Attorney-General can stay a process; sure the officials and the Minister can say there is always an opportunity for people to go to court to try to defend themselves against extradition. Yes there is but they still have to make sure they do not fall within the tests. 
These definitions are fatuous. They are so poor that after saying what the conduct is that represents people as mercenaries—and basically it means those who are more highly paid than the people they may fight alongside—they then state that a number are not mercenaries even though they are doing those things. So we get subclauses (2) and (3) of clause 5. 
I have also had assistance—and I thank the Minister for the advice from the officials—on the meaning of clause 7. I was concerned that it made recruiting a wider offence than that of being a mercenary and I am not reassured. Clause 7 does not have the qualifications that appear in clause 5. It does not have what I believe to be essential exceptions to the mercenary definition and therefore we have an even wider opportunity for some malign Government to use it. 
I am indebted to Mr Ron Mark for his comparison with the attitude of the Chinese Government to Falun Gong. I understand that China is not a party to this treaty for which we can be grateful. Of course it could become a party to it at any stage and we imagine it would be an extremely cynical party that would use these provisions in the same way that it misuses other statements of intent and in the same way that it is trying to renege on the promises it made to Hong Kong. 
This is entirely unnecessary legislation or if it is necessary that necessity has not been explained. We have a Government that loves to go off to attend battle commemorations a Prime Minister who will not miss any opportunity to be photographed alongside old soldiers and a Government—her Government—that is paying no attention to the old soldiers in this House who are attesting to the honour of mercenary activity. We have a Government that may well need to sponsor and use people who can go and fight—or who can support others fighting—in our region. 
Our region is not benign. There are many competing interests. There is a power vacuum—or there would be if the Australians had reneged as disgracefully as New Zealand has on defence commitments. We have a near vacuum in some areas and it may well be that mercenaries are the best way in which we can support those who share our values. This bill will make that a very difficult thing to do. 
Hon Rick Barker 
: So if you do it for money it’s OK? 
STEPHEN FRANKS 
: Mr Barker braying as he usually does did not bother to take a call. We will not hear him make a speech but he brays that doing it for money is wrong. I take it that the member is here out of altruism. I take it that he has not been banking his pay cheques. Does that taint everything said in this House by the member? Does that make what would otherwise be worthy brave and courageous activity all wrong? 
Ron Mark 
: If they’re supporting communist ideology it’s OK! 
STEPHEN FRANKS 
: It is OK if it is supporting communism—I thank Mr Mark. 
Mr SPEAKER 
: The member will come back to the bill please. 
STEPHEN FRANKS 
: The contribution made by the Ministers or from any member on that side has been conspicuous indeed! The only reason offered in this entire debate for passing this legislation is that fighting and being paid is somehow not appropriate. 
But this bill does not actually do it. The only offence here arises if some people are paid more than others. If people are alongside a conscript army or beside the poor kids in Africa who are forced to fight for nothing then they are mercenaries but if they are alongside some highly paid Arab soldiers who could easily be paid more than them then it is not mercenary activity. Could the Government please justify that? There are plenty of calls in this debate. I am sure there will be space for it. I long to hear it. We would give leave if the Government needed more time. We would love to hear an explanation of just how this bill can be in New Zealand’s interest. There has been no explanation throughout the debate. 
A party vote was called for on the question  
That the Mercenary Activities (Prohibition) Bill be now read a third time. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Bill read a third time.