Visiting Forces Bill — In Committee 
Visiting Forces Bill — In Committee 
[Volume:618;Page:13750] 
Visiting Forces Bill 
In Committee 
Part 1 Preliminary provisions 
SIMON POWER (National—Rangitikei) 
: 
 At first glance this bill is a reasonably straightforward and uncomplicated piece of legislation. In fact during the second reading a number of members referred to it as such describing it as legislation that was straightforward simple uncomplicated and a reasonably simplistic instrument. I can tell the Committee that the work that went into getting this bill to where it is does not in any way reflect that this is a simple and straightforward piece of legislation. Whilst the bill itself might be small in size in the sense of the number of pages that it contains it certainly is not uncomplicated. 
 There are indeed complicated matters relating to jurisdiction contained in the Visiting Forces Bill; and although in its simplest and purest form it is designed to update and amend the law relating to recognised international practice and to enable New Zealand to give effect to status of forces agreements concluded with other States and to repeal the Visiting Forces Act the jurisdictional questions contained in the bill I would submit—and I would be interested in the Minister’s view on this—are not straightforward actually. I know that the officials did a fine job of trying to explain to members of the Foreign Affairs Defence and Trade Committee over and over again how the primary and secondary jurisdiction was to work in the absence of a status of forces agreement—or a “SOFA” as it quickly became known. I suspect that that is like military lingo but nevertheless it was a term that was adopted by the committee very quickly. 
The guts of the Visiting Forces Bill is contained in Part 2 but I just forewarn members—and no doubt the chairman of the select committee the Hon Peter Dunne will have a view on this—that although the bill looks simple it contains quite complicated messages. It is not a straightforward measure. National has indicated it will be supporting this bill and will continue to do so through the Committee stage. The bill does do those things that are set out in the purpose clause. 
I do not want to say anything more than that at this stage other than to say that Part 2 contains the complicated and in-depth jurisdictional questions. I am sure the Minister if he has a quick flick through will be interested to see what the new clause 8 definitions do because it is not straightforward. I imagine for soldiers on the ground a quick look at clause 8 would not solve the questions they had in their mind about jurisdictional issues at first glance. It is the sort of thing that takes a bit of getting one’s head around. 
I do not propose to add anything further in respect of Part 1 but I look forward to taking a call this evening on Part 2 and discussing with other members of the Committee of the whole House the provisions contained therein. 
Hon PETER DUNNE (Leader—United Future) 
: 
 I want to take a brief call on Part 1 partly in response to the comments the previous speaker has made. This bill on the face of it is relatively straightforward legislation. It has been promoted as an amendment to replace the Visiting Forces Act of 1939 and to update law and practice regarding visiting forces coming to New Zealand. It is very difficult to argue against that. I think it is true that although all parties as far as I am aware will be supporting this measure there are some issues that the member has alluded to that will take maybe a little bit of time as we move through. I do not say that in any sinister sense but if I draw particular attention when we get to Part 2 to some of the provisions around clauses 12 to 14 they will be the issues that attract attention. 
In essence what this bill seeks to do is recognise the arrangements whereby forces that are for some period of time stationed in New Zealand are subject to the law and discipline of this country in respect of activities they take on outside the terms of their attachment. In that sense the bill is parallel to some of the legislation we have been passing recently dealing with cases where New Zealand forces have been deployed overseas. It is a normal practice. It is good to see the concept we have of status of forces agreements which are concluded on a case by case basis with visiting forces now being given in effect some form of regularity by this bill. It is updating legislation that is over 60 years old so it is very timely in that regard. 
But I do draw to members’ attention—not that there are problems or massive difficulties or even divisions over the clauses I referred to in Part 2—that there were provisions that exercised the select committee’s mind quite intently and they are ones that need to have issues around them teased out rather thoroughly. Because it is one of those cases I think where we all know the end point we want to end up at—it is a matter of how we get there. We do not want to see people who are in New Zealand who commit crimes in New Zealand inadvertently placed in situations whereby they might be subject to a higher penalty in another country—particularly the death penalty—nor do we want to see a situation where they slip through the cracks and escape any potential penalty. So those provisions are very critical in the bill and as the previous speaker has said and I concur with him when we get to Part 2 they will be ones I suspect that the Committee will want to debate in some detail. 
Part 1 agreed to. 
Part 2 Visiting forces 
SIMON POWER (National—Rangitikei) 
: 
 I have nothing to add to the Hon Peter Dunne’s comment. They are spot on. We are into Part 2 where some of the clauses the member raised will be examined. I was interested in his reference to clauses 12 to 14 and perhaps at the risk of asking across the Chamber I suspect I will leave those clauses to Mr Dunne as I deal with clause 8 because I think this is where the Foreign Affairs Defence and Trade Committee was put in the position where it had to produce a new clause to reflect the jurisdictional dilemmas I guess that we found ourselves in. Because frankly for those of us who are not experts in military law—I am not sure whether we have any in the House but I suspect that Richard Worth or Ron Mark may be— 
Ron Mark 
: I used to be in the front. 
SIMON POWER 
: He used to be in the front. I am certainly not an expert in military law but reading it as a lawyer I found it difficult at first glance so it is worth walking the Committee through this. Because what the new clause says—and the officials are to be congratulated on working their way through this; it was not straightforward—is that in the absence of a status of forces agreement the service authorities of a visiting force to another country or State have the primary right to exercise criminal and disciplinary jurisdiction in respect of certain offences. So essentially the bill says the controlling country of those forces gets the first shot shall we say at the alleged offence. 
In the absence of new subclause (1A) not covering those offences—and they are quite specific—and the matter not falling within that primary jurisdiction then it reverts to a secondary jurisdiction; that is the jurisdiction of the New Zealand courts or the host country in this case. 
 The difficulty comes—and this is where the Foreign Affairs Defence and Trade Committee was concerned about the randomness if there is such a word of these types of enforcements—if we cannot get agreement at that point as to whether it is the primary jurisdiction that is being exercised; that is the controlling authority the controlling State the controlling country of the forces or the secondary jurisdiction of the host nation New Zealand. Well then it seemed that it was simply a matter of diplomatic chit-chat and of the two countries getting around a table and saying: “Well Bob I suspect that you’d better handle this one. It looks a bit untidy it falls through the cracks a bit.” 
That was the uncertainty I guess that members of the select committee were a bit concerned about. I know that my colleague Ron Mark will be anxious to make a contribution on this point because it seems to me that it is a bit messy when military law and international law in respect of jurisdiction falls back on diplomatic niceties. Because the certainty around drafting law and having clear and concise language versus the kind of “diplo - cocktail party speak” that goes on between diplomats I would have thought are two worlds apart. So that is a concern where if we are not able to get a clear response to whether the offence falls within new subclause (1A) or new subclause (1B) of clause 8 that in the end I guess is just a matter of those countries negotiating. The Minister may well correct me if I am wrong on that but that seems to be the position as I understand it. 
I am not sure that that is wholly satisfactory. But I am sure that we looked at it carefully enough in the select committee to say that well there is probably not much else we can do; that if it is not clearly primary or secondary jurisdiction there is a bit of a fall-back to that sort of diplomatic chinwag. We do not live in a perfect world—if we did the Budget would not have passed—so we will keep pressing on with this legislation. I would be interested in the comments of the chairman of the select committee the Hon Peter Dunne. I would certainly be interested in Ron Mark’s comments and very interested if the Minister in the chair would be able to clarify for me whether my interpretation of the fall-back position is correct. 
Hon PETER DUNNE (Leader—United Future) 
: 
 There was rather a tetchy exchange with Mr Mark a little while ago but there now seems to be a degree of bonhomie between us. I am grateful that he has waved me into the firing line at this stage. I may say with friends like that who needs enemies but that is for another day. 
Can I pick up the comments that Mr Power has made—and members will be getting a sense already that the Foreign Affairs Defence and Trade Committee operated on a multipartisan basis in dealing with what is a complicated issue behind a relatively simple facade. As I said during the debate on the earlier clause we all know the point that we want to end up at. It is a matter of how we get there. 
If I go to clause 8 which Mr Power has covered—and I should just advise members that there is no collusion between any of us speaking here in terms of who is covering what; it just happens to be the point of the argument—what we wanted to be clear on was that the procedures that were in place for dealing with offences committed by visiting forces in New Zealand were quite well spelt out in terms of where the authority lay and those cases where the authority would lie off shore were also spelt out. 
Mr Power raised I think what is one of the grey areas. I cannot remember his precise language but it was about “diplomatic-speak” and the niceties of quiet conversations about how one deals with particular problems. While the legislation to a large extent tries to delineate the categories there will always be those cases at the margins where a quiet word in someone’s ear and a rushed trip home at night are going to occur. I think we just have to be mindful of that in the whole process. This legislation seeks to I guess corral those opportunities to the maximum extent possible by being quite specific. 
I look particularly at new subclause (1A) that has been inserted into clause 8. But then one also has to look at subclause (1B) alongside that which states: “In the absence of an applicable agreement covering the matter New Zealand courts have the primary right to exercise jurisdiction in respect of any act or omission that—(a) is alleged to have been committed by a member of the visiting force a member of its civilian component or a dependant; and …”. That is an attempt to catch those difficult situations in a way that I think Mr Power was referring to. 
I want to move on from clause 8 and look if I can at some of the clauses that I alluded to a little earlier on particularly clauses 12 13 and 14. Clause 12 relates to the provisions of the Armed Forces Discipline Act and makes it clear that in respect of the Visiting Forces Act as it will be certain sections of the armed forces discipline legislation and presumably the accompanying regulations apply with respect to the activities of a service tribunal operating within New Zealand. 
One needs to look at that alongside the provisions of clause 14 which have the potential to be the most difficult. Clause 14 “Manner in which sentence of imprisonment or detention may be served” states: “(1) If a member of a visiting force a member of its civilian component or a dependant has been sentenced by a service tribunal of the visiting force to imprisonment or detention the sentence may be served in accordance with Part IX of the Armed Forces Discipline Act 1971.”One of the difficulties that we will have to address potentially in respect of that is the type of situation that we might encounter where actions take place that are extremely marginal to say the least and whether we have the capacity in terms of longer-term detention to hold people here for significant periods of time. We have always seen these offences I suspect as relatively short term in nature. The question will arise inevitably if the sentence is to be of some duration. How will that fit alongside the provisions of clause 14(1)? Let me give members a parallel but in some sense a totally unrelated example. 
Simon Power 
: Ha ha! 
Hon PETER DUNNE 
: No this is not as silly as it sounds. It is parallel in the sense of the dilemma; it is unrelated in the sense of the particular circumstance. I am thinking of the French terrorists. When we got these people we tried them according to New Zealand law. We then sentenced them—I think from memory—to 10 years’ imprisonment in New Zealand leaving aside the diplomatic flow that followed that sent them off to a tropical island for the balance of their sentence. The problem we actually faced was how in the civil prison system we coped with having to detain people convicted of an offence that was quite out of line with anything we had experienced here before. They were not murderers and thugs and everything else in the classic sense—they were terrorists. 
The point I am raising—and why I say it is similar but unrelated—is that potentially the same sort of thing can arise here. I am not saying that visiting forces will be terrorists—they certainly will not be covered by this legislation if they are—but people who have committed minor disciplinary breaches or minor offences who end up under military detention in New Zealand coming alongside people who may be caught for more severe situations. I do not think that is quite what we have been accustomed to dealing with but it is an issue that arises here in relation to clauses 12 and 14. 
I am conscious that the Committee has indulged me a little bit so I will not go on to comment on clause 13 at this stage. I may come back to that at a later point. 
RON MARK (NZ First) 
: 
 I have to admit that when I was looking at this bill and considering what to say—because I think members are pretty much in agreement with it—it occurred to me quite mischievously that when we consider the implications of visiting forces committing crimes in New Zealand or of New Zealand troops committing crimes in a nation they are visiting given the frequency of such occurrences given the distinct lack of such instances—I can recall only a couple of them over the last 30 years—we could be forgiven for considering that maybe the biggest problem visiting forces face is the types of offences that might be committed against them given our rather pathetic policing situation in this country. 
The fact is we are short of police from one end of the country to the other and a visiting soldier who called for assistance from the New Zealand Police simply may not be able to get the control centre to act on his call because 60 percent of the units on the controller’s screen are dedicated to traffic policing. Because those units are highway patrol or commercial vehicle investigating units they refuse to respond to other incidents. Despite the fact they wear a police patch on their shoulders they are saying: “No give that traffic accident that that visiting soldier has been involved in to an incident car or to a general duties officer who is investigating a burglary.” 
So whilst this part redresses the 1939 Visiting Forces Act the greatest threat we in this country need to think about is not acts of criminality committed by visiting forces in our nation; it is acts of criminality committed against visiting forces by our own people because of our own appallingly pathetic and totally unacceptable rising rates of crime and our inability to deal with that. 
There are some issues in this bill that give me cause to wonder. We have had incidents in the past where New Zealand soldiers in Singapore have committed crimes. I recall that when I was in the military a group of soldiers who were caught smoking marijuana fell subject to Singaporean law. It is interesting to note that those soldiers who were threatened with the rotan all said in time as they matured that that was the one punishment that scared the living bejesus out of them and they had never considered doing such a thing in Singapore ever again. One might ponder why we have not thought of allowing our troops who break the law in other countries to be subjected to the laws of those other countries because then they might think twice about breaking the same laws when they come back here. 
Hon Peter Dunne 
: They might not get the chance to break them again. 
RON MARK 
: They might not get the chance to commit that crime again particularly if it is dealing in drugs in Thailand for argument’s sake. 
The point is that we have as a result of the agreements and alliances we have an obligation to look after visiting forces. There are some rather interesting clauses in this bill. Simon Power said it was a rather simple bill but let us think of the simple little laws we have in New Zealand that do impact on visiting forces like the right to bear arms. I guess that currently if we did not have agreements or laws such as this a soldier who came in from Australia on exercise could be promptly arrested for carrying a rifle. That would not do because he would look rather silly on exercise without a rifle of his own. The New Zealand soldier who loaned him one from the quartermaster’s store or the armoury might then be charged with improperly illegally handing a firearm over to an Australian soldier. All these issues sit behind the scenes and are quite carefully dealt with in this legislation. 
The issue that I would like to focus on and more so to ask people to exercise their minds on is clause 12 which deals with for example provisions for compelling the attendance of witnesses and provisions for protecting judge advocates counsel and witnesses. How much easier things might have been today for the New Zealand Police if they could have placed constraints on visiting students to our shore who were witnesses to a murder. People have subsequently gotten away with a murder because the visiting witnesses were allowed to go back home to Japan. Despite all the nice “diplomatic-speak” that goes on behind the scenes in respect of the visiting forces we do not seem to have had any success in getting those witnesses currently in Japan—former visiting foreign students—to come back and give evidence to help our police force prosecute those accused of the murder of the young Japanese student at Columbus Academy the English-speaking school in Auckland. It is timely when we look at the provisions of this bill—at clauses 12 13 14 15 and 16—that we stretch our minds a little bit and ask the Government to start considering the type of legislation that should be coming in for those who do actually commit crimes in this country. 
When I was in the military we would have exercises such as Tropic Dawn when we would go to Fiji or Captive Lightning when the Americans came here as part of the ANZUS agreement. 
Simon Power 
: Those were the days. 
RON MARK 
: Those were the days when they would all come up to Waiouru and we would perform exercises like the Truppenamt exercise. We would have a large number of foreign defence force personnel visiting our shores. In all those times in which I estimate we would have seen tens of thousands possibly even hundreds of thousands of foreign visiting defence force personnel on our shores the numbers of instances where they had to be charged for breaking New Zealand laws or even for breaking their own laws—which this bill deals with—were very very few. 
Ironically I would say it is time for this Government to take a good a look at this legislation and stretch its mind as to how it might deal with visiting foreigners of civilian persuasion who come in and make an absolute mockery of our laws laugh at us then get on the next aircraft and shoot off back to their own country leaving behind them a trail of destruction from the traffic accidents they have caused. Young Asian students have killed in Christchurch’s Port Hills. There have been incidents involving students from Lincoln University and most recently up in Auckland. Those are the issues that I think this Government needs to get its head around when dealing with the Visiting Forces Bill that is before us right now because I contend that visiting students are a 10-times bigger danger to the New Zealand citizen than any defence force personnel from the United States Australia Fiji or Singapore. 
The question was put that the amendments set out on Supplementary Order Paper 212 in the name of the Hon Mark Burton to Part 2 be agreed to. 
Amendments agreed to and Part 2 as amended agreed to. 
Part 3 Miscellaneous provisions 
SIMON POWER (National—Rangitikei) 
: 
 I will not take a full 5-minute call the Government senior whip will be relieved to know. I do want to ask the Minister in the chair one question and given that this is not the Minister’s legislation I will give him the opportunity to seek some advice. The proposed bill strikes out its applying in Tokelau. The new clause 24 says that this bill is not in force in Tokelau. It states down the bottom in very small print “Compare: 1939 No 36 s 7”. So I did and I have it here. The original Visiting Forces Act 1939 did apply in Tokelau. In fact it applied in the Cook Islands and Tokelau as if those forces were part of home forces. That is the only issue I wish to raise. I wonder whether the Minister would be good enough to reassure the House that that particular clause will not get us into any difficulty in the future. 
Hon GEORGE HAWKINS (Minister of Police) 
: 
 I can quickly answer that question asked by Simon Power. Tokelau has asked to be outside this measure. As is usual we have agreed. 
Part 3 agreed to. 
Schedule 1 agreed to.  
Schedule 2 Consequential amendments to other Acts 
The question was put that the amendments set out on Supplementary Order Paper 212 in the name of the Hon Mark Burton to schedule 2 be agreed to. 
Amendments agreed to and schedule 2 as amended agreed to. 
Clause 1 agreed to.  
Bill reported with amendment.