Franks Stephen: Crimes and Misconduct (Overseas Operations) Bill — Second Reading 
Franks Stephen: Crimes and Misconduct (Overseas Operations) Bill — Second Reading 
[Volume:615;Page:11061] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to address the Crimes and Misconduct (Overseas Operations) Bill. The bill was referred to the Foreign Affairs Defence and Trade Committee on which ACT does not have a member and accordingly the report of that committee I have studied with some care. When this bill came into the House I made a number of comments that I want to refer to. I said we should not treat this bill as a mere formality as a matter that is just administrative tidy-up because the relationship between locals and occupying forces—the parallel that was drawn by the National speaker and mentioned by Keith Locke—or simply the forces of a country that is exercising a significant influence over another country’s population is very fraught. Over many years that relationship between the Roman legions and the subject peoples the behaviour of brutal and licentious soldiery or the policing personnel is one of the most likely causes of a destruction of a relationship the flashpoint the reason for a breakdown and the eventual embroiling of the contributing country in a very nasty and long-lasting involvement. 
I raised that issue when the bill had its first reading because I believe that New Zealand is slipping without being aware of it into re-colonisation. I see that in East Timor. For example the Australian Government admitted as reported in  
The Economist 
 last year that it has now spent US$2 billion in its involvement in East Timor. Quite a bit of that of course was military but there is also a lot of reconstruction aid. That is an enormous sum. As far as one can tell there is no assurance that there is going to be a return on that money other than a continuation of a very untidy and uncertain status quo an irritant with Indonesia and some justified good feeling on the part of Australians and New Zealanders that they did rescue the East Timorese from an oppressor. But whether that converts without proper colonisation—in other words without taking responsibility that colonisers learnt hundreds of years ago that they had to take—into a happy experience is really very much in the lap of the gods. I do not think there is anything in this bill that tells us that any of Mr Goff’s officials have gone back and looked at the experience of colonising powers and the way the relationships in the end slipped toward unhappiness on both sides. 
Because there is a great risk in these kinds of involvements that which seems so simple and straightforward at the start ends up with each side feeling vastly put upon. The contributing country—in this case New Zealand—may spend an enormous amount of money. It may even incur loss of life or health or long periods for its personnel away from home; and the locals may in the end feel nothing except resentment. 
This bill is obviously attempting to ensure that there is an authority to make sure the locals do not have quite as much reason for thinking the people in their country are affronting them; it does not do anything for example about the discipline there should be where the occupiers offend against the religious culture of the land they are in or immodesty or drinking or any of the other offences that tend to create real resentment. It might be argued that that does not matter—if there is a law against it in the host country then the host country will assert jurisdiction. It may be that the select committee can assure us that this issue has been dealt with. Does the agreement to cede authority extend to those kinds of offences? I do not know. Maybe they have ceded authority only in respect of things that are offences in New Zealand so that the host countries will retain the ability to discipline soldiers and prevent this kind of often unintended but sometimes very casual and arrogant offence. There is nothing in the select committee’s report that tells me. 
I am also concerned that it looks a bit casual that this committee did not deal with the problem of offences that are stupid here and would look even more stupid in the country where they are. Let us think for example of the Privacy Act. Are people going to observe the Privacy Act in these foreign countries? Half the job will involve breaching people’s privacy by getting a very good knowledge by any means one can of what is going on and turning it to good effect in peacekeeping. Are people going to observe the occupational safety and health legislation in all its manifestations? This bill says that they will be subject to New Zealand law in countries where it may simply not be feasible to observe a lot of the requirements that are expected of people in New Zealand. 
I think of some laws about to come. This bill would say that someone who gave out the criminal record of an offender who had not been recorded for a crime for 7 years would be subject to a $10000 fine. It may be argued that the Attorney-General has to consent to a prosecution and the Attorney-General will know that New Zealand has some pretty stupid laws and will not afflict New Zealanders serving overseas with those silly New Zealand laws when they are in those countries doing a job that probably requires them to ignore some of our more silly laws such as the forthcoming Clean Slate Bill. 
Let us look at it again in policing terms. I seriously wonder whether the New Zealand law would require the policeman over there to apply the Victims’ Rights Act. It is patently unsuitable. There will not be any records there that allow it to happen but one day we may get a local saying: “You assured us New Zealand that your people would be subject to New Zealand law. What did you do to ensure that I got my rights observed as a victim under New Zealand’s victims’ rights law?”. It may seem fanciful. It may seem that the Attorney-General’s discretion will protect in most cases but it does not really address the underlying question which is that when we are in someone else’s country there is inevitably cultural offence and there will be also inevitable expectations from the people in that country that simply cannot be met. We will not be able to live up to our own standards in the environment we are in sometimes and I do not see anything in this bill that addresses that. 
I am also concerned that the bill does not really address the situation that operation forces as they are called often have. They may have say Filipinos or Fijians or seamen from other nations—people from other countries who are part of a New Zealand force because that is their way of life. They go around the world assisting forces in strange and uncomfortable places. The select committee simply says that it feels sure that there is adequate scope for any tensions to be resolved amicably. 
The preceding sentence in the select committee’s report is simply incomprehensible. It is on page 4 and it starts: “Such persons should be included by the provisions of the bill and thereby be able to assert jurisdiction over such persons”. What does that mean? That those third country’s nationals assert jurisdiction over themselves? I cannot tell what the committee was meaning there and I suspect there is muddled thinking that is reflected in a muddled report. 
I am concerned also that clause 5(2)(a) and (b) may be tidy drafting but may be overreach. In the Committee stage it may be desirable to look at whether paragraph (i) of subclause (b) should be omitted because it appears to me as it reads that this Act could apply if a person were subject to an obligation to cede jurisdiction—in other words the country did have to cede jurisdiction to New Zealand in respect of a criminal act but brought criminal proceedings nevertheless. It seems to assume that it is seamless. If they are obliged to cede jurisdiction they will but maybe there is a situation where they are obliged but do not and as a matter of practice the New Zealand Government has not been enforcing the delegation. I do not think that is covered. I think that again it is taking a precedent relating to the Army and has not looked at it closely. 
Lastly I am concerned about the right to hold a person in custody for as long as is necessary to enable the person to be taken to New Zealand. It does not say that that should be as quickly as possible.