Franks Stephen: Crimes and Misconduct (Overseas Operations) Bill — First Reading 
Franks Stephen: Crimes and Misconduct (Overseas Operations) Bill — First Reading 
[Volume:610;Page:7577] 
STEPHEN FRANKS (ACT NZ) 
: 
 On behalf of the ACT party I rise to welcome this bill. We will support its referral to the select committee. The Crimes and Misconduct (Overseas Operations) Bill is intended in a nutshell to extent New Zealand law to cover not only New Zealand armed services personnel overseas in peacekeeping operations but also police and civilians serving as part of the peacekeeping or nation building or whatever other euphemism we give for this gunboatexercise. What we have of course is the crumbling of a series of fond beliefs and misconceptions that Mr Keith Locke has simply recited. 
The idea of course is that supposedly this is some kind of simple restoration of law and order. In the terms of the definition in the bill it is to cover people who are in a group participating in duties involving peacekeeping the maintenance or restoration of law and order or functioning Government institutions or similar activities whether or not in conjunction with personnel from one or more other countries. In other words this has been tailored for the purported objectives of the Solomon Islands exercise. It is also said to be general—that is it will be a standing piece of law that can apply whenever the Government is sending New Zealanders overseas for an exercise like this. 
But what concerns me is that the thinking and the care that has gone into this seems to be about as shallow as the care that has characterised our attitude towards the Solomon Islands for the last 10 years. When the Solomon Islands Government while it was still recognisable as a normal functioning Government asked New Zealand for assistance it asked us as I understand it for 20 or 30 policemen. It saw that it had a serious problem and that a threshold point was being crossed where its own police force could descend into the best and most well-equipped tribe of bandits around. It wanted a critical mass of policing assistance. 
What did New Zealand do? New Zealand applied the sort of nonsense theory that Mr Keith Locke just expressed—in essence saying: “If you people look at your indigenous institutions and build on them and work within your conventions and if the colonial oppressors have gone the natural peace order and good government inherent in your institutions will assert themselves and therefore we will send you one policeman.” So they sent one poor New Zealand policeman. A very experienced and successful man in New Zealand was sent up there to do an absolutely impossible job and as I understand it came near to a nervous breakdown. He was a diligent and sensible man he tried to do what he was asked to do and it was completely beyond him. New Zealand scrimped. We were given the invitation to help at a time when we could have helped without the expense we are now coming to. 
Now the Australians and the New Zealanders between them are going to have 2000 people in that country. It would be recognisable immediately by one of our 19th century forebears as a colonial operation. Indeed as I look at this piece of law I see that it is not very dissimilar to the instructions that Hobson was given when he was sent from Sydney to the Bay of Islands. He was told to go and assert British law over the lawless whalers sealers timber merchants and other settlers. He was told to try to avoid interfering too much with the natives unless he could get the natives to agree that British law would apply across them all. 
Here we go again so-called “nation building” applying our own law to our own people getting their agreement that ours is the law that will govern and that their courts and their institutions will not govern—and we think we are going to go and build a nation on that basis. No exit timetable has been arranged. There is no idea of how we are going to do it without cultural imperialism. Because this is not a simple failure to pay the Government servants. This is not a simple failure to back up a judge or the courts. This is a complete failure of a set of institutions that simply do not cope with the notion of “nation” when there are so many languages and cultures. 
It is extremely hard as we in New Zealand know to run a nation without grave tension when there are two cultures contending let alone over 100 cultures contending. The idea that we are going in to bowl in there write a few instruction manuals hand over and walk out is laughable. We should be looking at this law and asking: “How will our people really interface with locals? What will happen when the locals want to avail themselves of the law we are applying to our own people in that country? What will happen for example with the civilian employees who are locals and an integral part of our operations and who do not want to be left to the tender mercies of their own non-institutions?”. 
Those are the common experiences of people engaged in enterprises like this where tribalism nepotism and the tradition of strongman governing is simply not compatible with the fond ideas this Government is sending our people off with. 
I look for example at the rather simple and crude mechanism. It simply says that our people over there will be subject to our law if he or she does any act outside New Zealand that if done or committed within New Zealand would constitute an offence—whether or not it constitutes an offence under the laws in force in the place where it occurs. What does that not cover? For example our people are presumably going to be putting up buildings structures. Do they have to comply with the Resource Management Act? Do they have to worry about getting a certificate of fitness under the Building Act? How can they do it? There is no inspecting structure there. 
What about when they are called upon to deal with the people who are breaching the Convention on International Trade in Endangered Species of Wild Fauna and Flora in relation to those dolphins? Are they going to be liable? Will the “greenies” here in New Zealand pursue New Zealand – law offences against them for having failed as policing authorities in that area to stop what is clearly an offence in New Zealand? Who has thought of these issues? 
We are in a colonial exercise and we get this primitive little piece of law that says: “Let’s pretend it’s a little piece of New Zealand wherever these folk of ours are.” Well all right let us pretend then look at some of the nonsense law that is going to apply. In many respects these New Zealanders in the Solomons would probably rather live under Solomon Islands law. They would not have to deal with the Privacy Act. How does a body conduct the kind of policing exercise that these folk are going to have to do the kind of intelligence gathering they are going to have to do and comply with our nonsense privacy law? Yet that is what this bill says: they will be committing offences if what they are doing would be an offence in New Zealand. 
This is a very crude exercise. I wonder whether anyone went back and looked at the much more sophisticated exercises that one would find in colonial office records of 140 years ago—because they would be a better precedent than this primitive little piece. 
I look also at some of the other things that might be needed for the benefit of our service people over there who in good faith are doing what needs to be done and is practical at the moment on the ground. For example they can be arrested without the consent of the Attorney-General. Obviously the Attorney-General’s discretion is seen as the protection for these people against an unwanted prosecution. I would not want to be relying on the protection of the Hon Margaret Wilson. I would not feel that that was much protection when some politically correct offence was being lodged against these folk. However it is not needed to arrest them. Then once they are arrested it appears that no further proceedings may be taken until the consent of the Attorney-General to a proceeding has been taken. What about habeas corpus? What about a bail application? One is not allowed to take any further proceedings until the consent is obtained. Meanwhile they are mouldering up there on what might be some absolutely trifling offence. This is a typical piece of quick knee-jerk reaction—a copy of the four-decades-old facilitation for the United Nations. It has been copied and thrown in without any realisation that this is the very first stage of some very complex redefinition that New Zealanders will need of their relationship with the countries that we are now poking our nose into. 
We are not only stretching our legal conceptual and foreign policy resources in doing this; as Ron Mark said we are actually stretching our physical resources. These people are being sent to the Solomons on this exercise while we will have people paying blood money in Iraq to apologise for the Prime Minister’s gaffes.