Locke Keith: Visiting Forces Bill — First Reading 
Locke Keith: Visiting Forces Bill — First Reading 
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KEITH LOCKE (Green) 
: 
 I rise on behalf of the Greens to support the Visiting Forces Bill going to the select committee. It is important to have rules governing any foreign military personnel who come to New Zealand. They come here under all sorts of categories ranging from people here for short-term training missions to people staying on a longer-term basis—as with the American personnel who have been coming to Harewood on and off for many years. As the previous speaker indicated there are different levels of agreement relating to visiting forces. This bill is a sort of base document setting out the framework under which visiting forces operate. On top of this will be individual status of forces agreements appropriate to the particular foreign contingent coming in whether it be a short-term training force or a longer-term force working in New Zealand—as again applies to the people who come to Harewood in one capacity or another. 
In addition—as the previous speaker indicated—there are often other agreements such as those that occur in relation to Afghanistan where the situation is reversed with New Zealand units operating within a larger force like an American-led force in the case of Operation Enduring Freedom where rules of engagement and command structures are built in on top of the status of forces agreement. It can be quite complicated and it is good to have a base document. I do not think we will have in New Zealand that level of complexity that perhaps operates in Afghanistan because I do not envisage hostile military operations taking place in New Zealand in the near future. They are not on the horizon in any way whatsoever. 
The essence of this bill and the status of forces agreements that lie on top of it are that the visiting force has jurisdiction over things that happen within it—that is if one of the visiting soldiers in its base attacks another soldier from the same country the discipline that ensues is in general that of the visiting force command structure. The case does not go into a New Zealand military court or domestic court although as one speaker has said there is a qualification in the bill whereby the Attorney-General has certain rights to intervene and generally to stay any prosecution. 
Of course there are grey areas. For example a fight between two personnel from a visiting force may occur. In some way a New Zealander or the property of a New Zealander may be involved getting us into that shared jurisdiction situation where the involvement of the Attorney-General—the New Zealand Government—is relevant. 
There is one provision of which we will tease out the meaning at the select committee. On the surface the provision is a very good one—that is the service authorities of a visiting force must not impose or carry out a sentence of death in New Zealand. Of course given that we have abolished the death penalty we would be in favour of that but it does leave open the question of a crime being committed that is deemed to be a very serious by the visiting force and instead of the prosecution taking place in New Zealand—or any sentence carried out in New Zealand—the visiting personnel might be whipped back to the country of origin be it Brunei the United States or whatever. 
If it were the United States which does have the death penalty one could conceivably see the situation of somebody who commits an offence in New Zealand being whipped back to that country and suffering the death penalty at the end of some sorts of military proceedings that take place there. That is a theoretical possibility and I would like to tease that out when the bill gets to the select committee. 
It is relevant because around the world now the application of the death penalty is quite controversial when it involves people from other countries—for example if a foreigner is a citizen of another country. There have been protests in Europe about Italian citizens and so on being sentenced to death in the United States. There has been a controversy over the people illegally detained at Guantanamo Bay. Some are British and some are Australian citizens and there is a question of whether the proceedings against them ever take place—they are in a legal limbo at the present time—in an American military court which will mean they will possibly be subject to the death penalty. So it is a live question when one is talking about the question of visiting forces. 
I think the problems that ensue historically with visiting forces ensue more where there is a longer-term occupation force. There have been big controversies for instance in South Korea Okinawa and the Philippines and one would expect that when visiting forces like the American forces in this case have been in such countries for long periods of time—and many thousands of them—the assault cases rape cases and murders ensuing in respect of the local populace can cause great tension between the countries involved. 
 The proper application of justice is important and citizens of the country—in this case New Zealand—get very upset if they do not think that justice has been properly applied to visiting forces who have offended and if the way they have offended has affected the citizens or property of citizens in the host country. It is important to have the bill right in this respect to make sure it is applied properly and to make sure that on top of the bill we have appropriate status of forces agreements that ensure justice is done. 
Throughout the 1980s in terms of visiting forces in the form of United States personnel on Operation Deep Freeze there were ongoing problems and tensions between agencies of the New Zealand State and the US commanding forces. For example there were cases of drugs being intercepted that had been brought in on American military planes and there was a to and fro between the Customs Service which wanted to get at the people responsible and the American forces. 
If we use a parallel with Harewood we cannot raid an American plane very easily under the Visiting Forces Bill or under any status of forces agreements that are on top of it. We have to have an arrangement whereby domestic authorities in New Zealand—the Customs Service and others—are satisfied that if for instance drugs were brought in on a military plane then some penalty has ensued and that the drugs did not somehow move to the population of Christchurch as occurred in a contentious case in the 1980s.  
This is potentially a relevant problem because the United States sends its Starlifters through Harewood on a regular basis en route to the joint Australian-US base at Pine Gap station. Even the Ministry of Agriculture and Forestry had a bit of a debate with US authorities at Harewood about the right to spray the planes coming in as a biosecurity measure. All these questions are left a little bit up in the air and need to be dealt with. 
There is the other question—and Ron Mark referred to it—about the International Criminal Court which the American Government does not accept. Potentially under New Zealand’s adherence to the International Criminal Court if we find that American military personnel who are based here short term or long term have offended—even overseas—in a way that would qualify them to come before the International Criminal Court then we should have an arrangement where that is made possible. 
The Americans are trying to sign up agreements with countries around the world and have unfortunately signed agreements with several countries in the Pacific—unfortunately without very much New Zealand diplomatic action to stop this—to exempt American people in those countries from being shipped off to the International Criminal Court. 
I think it is important that we have agreements and this bill set out so that we can fulfil our international obligations. We must assure New Zealand people that justice is done to people who commit crimes—be they members of American forces—particularly if New Zealanders are involved in any way either directly in terms of their property or of physical effects or in terms of what often happens with visiting forces which is the fathering of offspring in New Zealand when civil cases sometimes ensue. All sorts of problems can arise that are handled through the civil jurisdiction rather than the provisions of this bill.