Armed Forces Law Reform Bill — First Reading 
Armed Forces Law Reform Bill — First Reading 
[Volume:637;Page:8063] 
Armed Forces Law Reform Bill 
First Reading 
Hon PHIL GOFF (Minister of Defence) 
: 
 I move  
That the Armed Forces Law Reform Bill be now read a first time. 
 At the appropriate time I intend to move that the bill be considered by the Foreign Affairs Defence and Trade Committee. The purpose of this bill is to establish an effective and fair system of military justice. Our current system is governed by the Armed Forces Discipline Act 1971 which came into effect on 1 December 1983. Attitudes and the environment have changed considerably since that time. Community expectations and the New Zealand Bill of Rights Act 1990 have both highlighted and expanded the rights that need to be observed. As a matter of principle the Government believes that the military justice system today should apply to our armed forces personnel the same rights enjoyed by civilians in the criminal justice system to the greatest extent possible consistent with the efficient and disciplined operation of the armed forces. 
Changes are also required to bring our military justice system into line with the 2001 defence statement entitled  
A Modern Sustainable Defence Force Matched to New Zealand’s Needs 
. This states that a joint approach to structure and operational orientation should be a key component of the Defence Force. Some parts of the military justice system today are not common to all three services. This hinders the proper exercise of joint command and is an unnecessary complication. Acknowledging the need to respond to a changed environment the Defence Force undertook a review between 2002 and 2006 to assess what reforms needed to be made. This review took into account New Zealand’s international obligations. It also looked at the experience of other States such as Australia Canada and the United Kingdom which have gone through a similar process in recent times. The review included substantial consultation within military and legal communities and this bill is the product of that review. 
The two principal components of the military justice system are summary discipline and courts martial. Summary discipline deals with more minor charges heard by a commander in a unit. Currently the Armed Forces Discipline Act provides for two systems of summary discipline one for the Navy and another for the Army and the Air Force. This is not consistent with the joint orientation that has now been adopted by the Defence Force. This bill provides for a common system of summary discipline for the armed forces that complies with the New Zealand Bill of Rights Act and combines the best elements of the two current systems. The bill will simplify processes and produce efficiencies consistent with the expeditious administration of summary discipline without compromising fairness. 
At present the convictions and sentences of courts martial are reviewed by the Board of Review which has the power to quash convictions and vary sentences. This bill will abolish the Board of Review replacing it with enhanced rights of appeal to the Courts Martial Appeal Court. The Judge Advocate General’s supervisory role in respect of the military justice system will be preserved by expanding his or her power to refer cases to the Courts Martial Appeal Court. 
One of the principles that underpins many of the reforms in this bill is that the processes of the ordinary criminal law should be the benchmark for military law unless there are sound reasons arising from the nature of the armed forces that dictate otherwise. The bill for example aligns the grounds for appealing to the Court of Appeal or Supreme Court from a decision of the Courts Martial Appeal Court with those that apply to criminal appeals from the High Court. Another example is the authorisation of an equivalent to the police detention legal assistance scheme for the benefit of service members who are being questioned by the service authorities in connection with a suspected offence. 
In assessing whether the special nature of the armed forces requires a departure from the processes of the ordinary criminal law the review conducted by the Defence Force focused on what are generally agreed to be the seven vital elements of the military justice system. These are the maintenance of discipline consistency in all strategic environments portability expedition fairness efficiency and simplicity. This bill represents a significant advance for the New Zealand armed forces in respect of those vital elements as well as improving the compliance with the New Zealand Bill of Rights Act. I have had the chance I think to consult with almost all parties in the House on this legislation. This ought not to be a controversial piece of legislation and I believe that it will attract support from all sides of the House. I certainly commend the bill to the House. 
Dr WAYNE MAPP (National—North Shore) 
: 
 National will be supporting this bill going to a select committee. We do note that the Minister did brief the National Party and other parties in the House. Yes it is true that our system of military justice does need modernisation but it is important to highlight a fundamental point. The actual military offences are not being changed by this legislation. What is being changed are the procedures—how those offences are in fact tried. The changes are largely around what we might loosely call the superior jurisdiction—the courts martial. 
There are some details in that that I want to bring to the House’s attention. As I am sure there will be members in this House who perhaps have suffered the impost of summary jurisdiction of their units— 
Ron Mark 
: And dealt it out. 
Dr WAYNE MAPP 
: —and dealt it out so we hear—I shall mention that that part of the procedure will not really be changing in fact. I do note that there are two colleagues at least in the House who have served in the role of presiding officers in the summary jurisdiction and I would also have to put on record I guess—as the member volunteered it by interjection—that Major Ron Mark was also a recipient of that jurisdiction perhaps as a private soldier. It clearly did not inhibit his rise through the ranks thereafter. 
That having been said I will now move to the issue of courts martial because this is a significant change. Under the existing system we essentially have a panel of military officers who try the accused. There is no jury or anything of that nature and the legally qualified person—frequently not a serving officer—is acting merely in an advisory role. At least that is the theory. Those members who have seen the film  
A Few Good Men 
 will note that in other jurisdictions such as the United States it is done quite differently. There it looks more like a civil trial with a judge sitting in jurisdiction exercising a legal approach to the trial. That is the major change that will be brought about by this legislation and I think it is a good one. When people are facing the prospect of imprisonment—and there have been many courts martial in New Zealand including those in recent years where people have been sentenced to imprisonment—there should be a legal process and all legal niceties should be observed. 
One thing I also want to bring to the House’s attention is what I think is quite a significant change. There is now established a Director of Military Prosecutions. This person who will almost certainly be a serving officer will be appointed by the Governor-General. Most probably that person will be the director-general of the legal service currently a brigadier in the New Zealand Army. The interesting point—and we will be exploring this issue in the select committee—is that that person will be under the supervision of the Solicitor-General and will be immune from command of the Chief of Defence Force. Members should note that point. A serving military officer will not be accountable for this particular purpose—that of Director of Military Prosecutions—to the normal chain of command. The responsibility is actually to the Crown Law Office which is headed by the Solicitor-General—and that person has the power to stay proceedings under military law. So this is quite a substantial change and that particular person will have substantially more autonomy and independence than any other officer in the New Zealand Defence Force. The Minister just glossed over that and did not make much of it but I suggest that that is a very significant change. We will be wanting to explore that change in the select committee in order to understand the significance of it. I am told that it is the case in the United Kingdom and in Canada so I will want to see how it is working out in practice in those jurisdictions. 
National is supporting the bill but we should not pretend that these are minor changes. They are substantial changes. By and large I suggest that they are actually changes for the good. They do modernise our system. 
I just want to bring the attention of the House to this additional fact. Some years ago—about a decade—there were only about three or four legal officers across the Defence Force. Typically there was one in each of the services plus a director. Today there are 28 which is a change in the space of just 10 years and virtually every deployment overseas includes a legal officer. Is that not an interesting change? No doubt people have it in their minds that that is OK. They guess that when people in the services go out on patrol they have to go and talk to the legal officer to work out the rules of engagement and so forth and that if they happen to fire their weapons they will be interviewed by the legal officer in the field. People might suppose that there will be a report going back to the Director of Military Prosecutions who is reporting to the Solicitor-General. 
We have to ask ourselves whether this helps or hinders the conduct of contemporary operations. By and large I think that it probably helps though perhaps not in the way that I have described because I recognise that contemporary operations and their interaction with humanitarian law which is a much greater plethora of conventions and custom law and much greater interaction with civil reconstruction—rebuilding societies—do have a significant legal dimension to them. It is not like military conflicts of the past. So things are done differently and properly so. These nevertheless are very big changes. Four legal officers to 28 in the space of a decade is a change in the culture and in the way the Defence Force now conducts its contemporary operations internationally and indeed locally. 
So National does support the bill. I personally see it as an overdue modernisation to our military law but it does raise significant questions which I trust that the select committee—under the chair of Dianne Yates—will be able to explore properly because what they really say is that contemporary military operations are different from the military operations of the past that are so well known to many members in this House and to their predecessors. 
DIANNE YATES (Labour) 
: 
 I welcome the introduction of the Armed Forces Law Reform Bill. As the previous speaker said we look forward to its coming to the Foreign Affairs Defence and Trade Committee. It is a bill about the modernisation of the law of the armed forces. I must say that a good deal of preparation has gone into this bill. It is one of the best pieces of legislation I have seen. The explanatory note is extremely good. Not only does it talk about the policy statement but also it outlines the public policy objectives discusses the analysis of the clauses and outlines the consultation processes. As I have said this bill is one of the best pieces of legislation I have seen come before this House. It is a doorstopper. It is a really thick bill and it will take the select committee a good time to work through it. But the bill is excellent. 
I refer members to the explanatory note. The general policy statement states: “An effective and fair military justice system is essential to the maintenance of discipline in the Armed Forces in peace and war whether in New Zealand or overseas.” It does state that there has been no substantial reform of the military justice system since 1983—as both the Minister of Defence and the member opposite have said and the National Party has agreed. This reform comes about through domestic and international developments in human rights—and the Minister has mentioned those in Australia and Canada—and it comes from a review conducted by the New Zealand Defence Force which recommended a large number of reforms. Those reforms are reflected in the bill which will amend—as has been said—the Armed Forces Discipline Act 1971 the Courts Martial Appeals Act 1953 and the Defence Act 1990. 
The general policy statement then talks about the amendments that the bill makes. It states: “the Bill will make a number of miscellaneous reforms to military law that will—improve the compliance with commonly understood principles of justice … close gaps in the application of military law …”—and Dr Mapp has just outlined some of those—“… and produce a modern military justice system”. 
I also refer to the part of the explanatory note that talks about the public policy objectives: “The objectives of this proposal are to reform New Zealand’s military justice system to—improve its consistency with the New Zealand Bill of Rights Act 1990; and maintain or improve its delivery of the following vital elements:”— 
John Hayes 
: We can read. 
DIANNE YATES 
: I remind Mr Hayes that he has an opportunity for a 10-minute speech when I finish—“focus on the maintenance of discipline: consistency in all strategic environments:”. 
The explanatory note then goes on to say something that I think is really interesting and that has not been mentioned which is that there will be a small increase in legal aid costs associated with the granting of legal aid to suspects and that that will be met from within existing baselines. With regard to most bills that come before a select committee we ask how much the provisions of the legislation will cost—what the extra expense is. In the extensive amount of planning that has gone into this bill I think a lot of the questions that a select committee might ask have already been answered. 
There has been consultation with the Chief Justice the President of the Court of Appeal the Judge Advocate General members of the panel of Judge Advocates members of the panel of courts martial counsel the New Zealand Law Society and—I am sure Dr Worth will be interested in this—the Armed Forces Law Association of New Zealand. The New Zealand Defence Force intranet site has provided all members of the New Zealand Defence Force with information about the review of the military justice system and the opportunity to comment. We have a list in the explanatory note of the stakeholders and the consultation process that has been gone into. Finally it talks about the Government departments and agencies that have been consulted: Treasury the Ministry of Defence the Ministry of Justice the Crown Law Office and the Parliamentary Counsel Office. There have been a number of meetings between the New Zealand Defence Force and both the Ministry of Justice and the Crown Law Office. 
As one of my colleagues has said many of us have been impressed with the process that has been gone through. I recommend that those who are interested in legislation—and those who are drafting future legislation—take a good look at the explanatory note of this bill and at the actual structure of the bill itself. I am sure the select committee is looking forward to undertaking a closer examination of its content. 
Dr RICHARD WORTH (National) 
: 
 Dr Mapp has explained in an exemplary way the ramifications of this legislation and its impact on the current law. As he has said National supports this Armed Forces Law Reform Bill for passage. It is a commonplace to say that an effective and fair military justice system is essential to the maintenance of discipline in the armed forces in peace and war whether in New Zealand or overseas. 
This legislation stands clearly in need of amendment. It is interesting that the legislation being amended—the principal Act—is the Armed Forces Discipline Act 1971. But it took that legislation 12 years to come into force. I am not sure that we would tolerate that in the Parliament of 2007. That was a 12-year gap between the enactment of the legislation and its coming into force. We just do not see those unacceptable time frames. The reason for that in substantial measure was that it was necessary for armed forces rules of procedure to be enacted. Prior to the Armed Forces Discipline Act there was a Navy Act New Zealand Army Act and Royal New Zealand Air Force Act. They all had quite different rules and incidentally they all had quite different traditions. 
In the course of my military experience I had the privilege—fortunately not of being a victim of the court martial setting—of taking part in courts martial in a number of roles. In particular I had a role in navy courts martial—the service I was associated with. Where the court martial involved the trial of an officer a sword was placed in front of the accused. That sword lay parallel to the place where the accused officer was seated or standing. The court retired to consider its verdict and when it came back to pronounce its verdict in open court the accused officer could look to see which way the sword was pointing. If the sword was pointing towards him or her—but it was always him in those days—then he knew that he would be convicted by the particular court. Those were the elements of drama that were injected into the courts martial of those days. It was somewhat akin as more experienced members of the House may recall to that television programme called  
Branded 
 where the sword of a Confederate Army officer who had crossed the line of military discipline was broken. 
There were other aspects of courts martial in those days that were also of some interest. One good practice was that when the court retired to consider its verdict and was in a position to deliberate on what the outcome would be it was always the junior officer in the court of three—or perhaps five—officers who was asked to say what he felt and whether he felt the accused was guilty or not guilty. The reason behind that tradition was so that a junior officer would not be affected by the views of his seniors as to what would be the appropriate political response to make in respect of a determination in a criminal setting. It is also right to say that there was a degree of cynicism about those court martial processes in those days—somewhat akin to the  
Alice in Wonderland 
 statement of sentence first verdict afterwards. 
We are not seeing in this legislation significant substantive change but we are seeing some change which I believe—echoing Dr Mapp’s comments—to be worthwhile and of merit. There are still significant differences between military justice and the justice meted out in the civilian courts sitting in their criminal jurisdiction. Much higher standards are expected of military personnel than those people outside the military who cross the line and commit criminal offences. Nothing in this legislation will detract from that higher standard required of those who serve this country in a military setting. 
The comment has been made about the number of lawyers in the military. That is truly a striking change. To some extent I am not supportive of that change but it is the reality that this Government has significantly moved our focus of military activity not from war fighting but to peacemaking. In that peacemaking context the provision of legal advice becomes quite critical. In a war fighting setting those issues do not bear time for reflection. I commend this legislation to the House. I think it is appropriate that it be enacted without delay. 
RON MARK (NZ First) 
: 
 I found it very interesting to listen to Dr Worth who actually made me reflect somewhat on what I was going to say. I will follow on from the interesting summation he has given because it really highlights to me what is different about the military and what is different about ordinary people.  
Some of Dr Worth’s recounting of the courts martial and of the procedures that used to exist reminds me even more broadly of the customs of the service and the expectations placed on military people that stand far and above the expectations placed on ordinary citizens of this nation. These expectations are put upon military people for very good reasons. There is an honour code and there are expectations such as what one will or will not do. There are consequences from bringing the military into disrepute through conduct to the prejudice of good military order and discipline and there are ranges of charges that can be brought against someone under that simple charge. In my day those charges came under section 61 and most young men and women who were undergoing recruitment training fell victim to that at some stage for misdemeanours such as dirty boots twisted boot laces not shaving scruffy hair—all of which was considered to be conduct to the prejudice of good order and military discipline.  
To those who were subjected to the first few torrid weeks of the military world it could be quite daunting to find themselves being marched up at 110 paces to the minute to be stood rigidly to attention in front of the officer in charge of a company with their headdress removed to have the charges read out and to be given a few split seconds or minutes to attempt to justify or refute the charges which might be brought against them as a private by a lance corporal—who himself might look as if he has barely learnt to shave. It could be daunting for a private to be given a punishment and summarily marched straight out of the door to be put to work to complete one’s sentence—after-hours generally in one’s own time. In those times and in those days there was not so much as a snowball’s chance in hell of redressing what one thought to be a wrong. A few of us on the odd occasion took it upon ourselves as junior recruits to challenge the orderly room procedures and we were astonished to find that our punishments had doubled as a consequence. So one learnt pretty quickly to shut one’s mouth take one’s punishment get on with it and demonstrate that one was a man and would accept the consequences of one’s own transgressions.  
The customs of the service which are embodied in military discipline and the processes that underpin the Armed Forces Discipline Act are important. There have been differences between the army and the navy for some very good reasons. Some of it is customary. Some of it is outdated now such as the custom that the navy has of not drawing its sword of carrying its sword “at the trail”—that is the correct term. In days gone by under Queen Victoria I think it was— 
Dr Richard Worth 
: King Charles. 
RON MARK 
: King Charles. The navy lost the privilege of its officers drawing their swords in the presence of the monarch because they had mutinied. That was the punishment meted out to them.  
Traditionally the artillery had to suffer the similar indignity of seeing the transport corps being accorded the right to wear artillery officers’ uniforms and to carry artillery officers’ swords. Why was that? It was because at a certain battle—I think in the Crimea—a withdrawing transport unit came upon a battery of guns. 
Dr Wayne Mapp 
: Abandoned no less. 
RON MARK 
: They were abandoned as Dr Mapp has just pointed out. They were abandoned and that is an ultimate sin because the guns are the colours. For one to abandon one’s colours is an ultimate sin and the punishment that was meted out to the artillery was for them to see one of their privileges and rights accorded to the corps that actually recovered those guns and brought them back in safely so they could be used again. An act of dishonour resulted in an act of honour being attributed to another unit and that still carries to this very day. Historically the differences between the army and the navy have been there for some very sound reasons. But society and the military have moved on and some of the things that were applicable then in terms of the Armed Forces Discipline Act are no longer applicable today.  
Dr Worth mentioned the fact that he believes the reason we now have so many lawyers in the military and deployed on operations is because this Government has us involved in only peacekeeping operations not war. Well the fact is these days New Zealand rarely deploys purely for the purpose of making war—in fact we do not. Internationally most of our friends and allies are involved in peacekeeping and peacemaking operations and that is a far more complex environment to be working in. The international consequences of a private soldier getting it wrong are considerably greater than they ever were in the First World War the Crimean War the Boer War or the Second World War. These amendments take note and give cognisance to those realities.  
I will not go back through and reiterate everything that the previous speakers Dr Mapp Dr Worth the Minister Phil Goff and Dianne Yates have gone through but there are some things that are worthy of note. It is worthy of noting that the Armed Forces Discipline Act 1971 came into force in 1983. I joined the army in 1971 and was subject to the Armed Forces Discipline Act at that stage. It seems a long time ago that I was standing to attention in front of my company commander being confined to barracks for misdemeanours. Some years later in 1978 as an officer I was instructed as part of my training in the running of orderly rooms and the powers that subordinate commanders have.  
Some time later I had the opportunity to cross swords with an officer commanding which resulted in my being fronted up as a junior officer—second in command of a unit—on a charge. It occurred to me then that there was no way in heck I was going to take the punishment of the commanding officer so I opted for a court martial. I did so because I knew straight away that it was by means of a court martial that one could get a fairer hearing and that natural justice would be more likely to be played out and as a result—just for the curiosity of members—they promptly changed their minds and ordered a court of inquiry which gave me the opportunity to cross-examine my accuser. All charges were dismissed. It did not do the accuser’s career much good beyond that because he was the one who ended up with a reprimand.  
What is pleasing about this bill is that the laws of natural justice and the Human Rights Act are written into this with a far higher degree of compliance than has ever been the case before—and section 24 and section 25A reflect that. The “Seven Samurai”—as often referred to by the military legal fraternity—and the focus on the maintenance of discipline are absolutely essential and they are retained. The consistency in all strategic environments given the fact that our troops are deployed to places like East Timor Afghanistan Bosnia Iraq and Bougainville is absolutely essential. Portability is important because our troops serve everywhere. Expeditiousness so that justice can be swift is important—and I only wish that was the case with the police force and the way in which it deals with its people.  
Fairness efficiency and simplicity—I could talk about some of the things I observed in the way in which military justice was meted out in my 20 years in the military. Some of it I find still sticks in my throat to this very day. But I know there will be plenty of time for an opportunity to discuss those issues as this bill makes its way through the select committee and it comes back for the second reading. I hope that some of the things I witnessed in my time as a junior officer will never ever be able to be played out again because this bill will clearly take care of what I consider to be anomalies that are well past their use-by date. 
KEITH LOCKE (Green) 
: 
 The Green Party will be supporting the Armed Forces Law Reform Bill going to the select committee. The bill updates the systems of military justice in what seems to be the correct direction allowing more due process to apply. It makes sure that courts martial which the previous speaker Ron Mark referred to are done in the proper manner with the right to call witnesses and the right to present one’s defence properly if one is subject to a court martial paralleling the civilian system of justice as much as possible. Of course within the military system there are some more summary levels of justice where the superior officer is the prosecutor the judge and the jury and gives the sentence. But I think our system will now have more protections in it than it had previously. 
One of the motivations in updating these procedures is partly to be in line with overseas jurisdictions and partly because of a greater sense of fairness we have in our society now with the New Zealand Bill of Rights Act; also it is about being more aware of the need for due process in all aspects of society. There is also the reality of the Defence Force operating in an environment of relatively low unemployment and finding it quite difficult to get people to join up and when they have joined up to retain them for any length of time. 
One of the problems of course is that it is difficult for people who join the armed forces to have to be away overseas sometimes for quite a while—for example on a mission such as in East Timor or on one of the ships for months at a time—because it creates difficulties for family life. So the Defence Force has to have good systems of pay and conditions—and in this respect good processes of justice—so that people do not feel they are hard-done-by and leave the armed services for those reasons. The bill reflects a good modernising pressure from society on the armed forces. 
We can compare ourselves with overseas forces and learn from them but we can also learn some negative things from overseas. Historically great injustices have been perpetrated against our Defence Force people. In the past this House has debated the unjust executions of New Zealand personnel in the First World War and we have had bills before this Parliament rectifying those injustices. A former member for Invercargill Mark Peck put a lot of effort into that area during his time in Parliament. So I think we are recognising here that we need proper systems of discipline that will allow for fairness. 
In those historic World War One trials United Kingdom officers were the ones conducting disciplinary proceedings and getting it wrong and some of our soldiers were wrongly executed. The United Kingdom system today is not perfect. I refer to another more recent case in which the discipline of the United Kingdom armed forces detrimentally affected a New Zealander. That was the case of Malcolm Kendall-Smith who was a member of the British armed forces. He refused to return to serve in Iraq and was court-martialled on the basis of refusing a lawful order. The trial was not done according to the procedures we would consider just. His main defence was that the US and British occupation of Iraq was illegal in international law—and I think that can be clearly established—but the judge in the trial said that the only thing he was going to take into account was whether Malcolm Kendell-Smith had obeyed a legal order or what he determined to be the legality of the order. He did not look at the case in terms of the background of the illegality or otherwise of the occupation of Iraq. He refused to consider that as part of the case. That is something we would not want to imitate here. 
The bill refers briefly to prisoners of war. The legislation this bill is amending states that prisoners of war are subject to the disciplinary proceeding outlined in that legislation. That is something we are very much cognisant of these days in terms of the situation with Guantánamo Bay in particular with the mistreatment of prisoners of war by the United States and the illegal rendition of prisoners taken in places like Afghanistan and elsewhere to third countries where they are tortured. Egypt Syria and Jordan are countries to which people have been rendered by the United States and subsequently tortured. Horrific cases came out of that. It is important that we get it right in terms of our treatment of prisoners of war including the prisoners of war that New Zealand troops capture in Afghanistan. 
The Minister of Defence Phil Goff admitted recently that the SAS unit in Afghanistan a few years ago did take prisoners of war and pass them over to the US-led forces and they may well have been rendered to torture in a third country. We still have no guarantee that that did not happen. So the issue is very much alive for us. It is disappointing that the Minister of Defence will not even accept that the people captured in the conflict in Afghanistan have prisoner of war status. If it is not accepted then it means that those people would not be subject to the procedures of this legislation. We could get into the difficult position potentially of even New Zealand citizens being subject to mistreatment in the way that an Australian citizen David Hicks has been mistreated. He has been kept 5 years in horrible conditions and in effect been tortured over that time. He is yet to be brought before a justice system—even a military justice system. 
The military tribunals set up by the United States have been widely criticised for not allowing a full application of justice. In the case of David Hicks the charge against him—something to the effect that he supported the enemy or associated with the people on the other side—would not in the Australian or New Zealand jurisdictions be considered a crime; it would be more a question of a prisoner of war status. That is where we have to be very aware of what we do in terms of military law. How we apply international law to military law and connect the two is very important because we do not want to end up in the situation of the United Kingdom where military justice is not applied in the broader sense; or of the United States where military tribunals have been subject to wide criticism; or of Australia under John Howard where he will not even defend the rights of an Australian citizen David Hicks to proper treatment. John Howard has been rightly condemned in Australia from across the board for not standing up for justice—for not standing up for David Hicks. 
It is disappointing that our Prime Minister when she goes off to America next week will not be bringing up with George Bush the cases of the rights of people who have been captured or seized by the Americans and mistreated in Guantánamo Bay and elsewhere—being rendered to third countries for torture. She effectively said in response to a question of mine yesterday that if she were the British Prime Minister or the Australian Prime Minister and if we had our citizens in Guantánamo Bay then it would be relevant to take up the issues but because New Zealand does not have people in that situation we should not bother about it. Yet Guantánamo Bay is something that has to engage—and does engage—the international community. Amnesty International Human Rights Watch and all of those international organisations that have supporters and members in New Zealand have taken up the case of people being mistreated by the American justice system or “injustice system”. 
We should do likewise and I do appeal at this late stage to Helen Clark that when she goes to Washington she should please not forget human rights. She talks about human rights in Zimbabwe—rightly—as she did the other day in criticising the latest arrest by the Zimbabwe regime of the leaders of the democracy movement. I ask the Prime Minister not to be inconsistent. If it is OK for New Zealand to advocate and speak out for human rights in Zimbabwe it is right to speak truth to the superpower and support human rights there. 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
Tena koe Madam Assistant Speaker. Kia ora tatou. At the centre of this bill is the assertion that an effective and a fair military justice service is essential in peace and war. The same associations between hope and despair discipline and punishment and justice and violence have been played out as we know in Parliament over the last 24 hours. That made me think about how those dichotomies are played out in the system of military law—and the context of human rights which Mr Locke has just talked about—for those employed in the naval armed and air forces. In talking about the armed forces members need to know that I never heard any of my uncles my koroua and my cousins who went to war say they were proud they had killed someone. Rather they disliked war and its effects both on those with whom they were in conflict and combat and on the civilian population including women and children. Those same relations of mine talked about the injustices they saw in the heat of battle. They said however that discipline had to be maintained. 
So I come to this bill thinking about the context of justice of discipline and of human rights and in doing so I understand that the connection between human rights and warfare can be tracked back to our very origins as a country. Six years into the birth of the nation in 1846 the first armed regular force of the settler Government was raised. Its focus was “to preserve the peace”. Twenty years later that commitment to peace was tested in Taranaki and the place of its failure became the scene for prolonged combat and the site for two major wars. There ensued a remarkable history of passive resistance as we know at Parihaka on the one side and the playing out of violence rape and retribution on the other side. Land confiscation and peppercorn rentals for Maori land were the price of so-called civil disobedience. 
That history that sets the scene for the operations of the military justice system in Aotearoa. As the Waitangi Tribunal commented in 1996: “the initial military action against Maori was an unlawful attack by armed forces of the Government on Maori subjects”. Further it said: “If war is the absence of peace the war has never ended in Taranaki”. Those beginnings of our military justice system influence our discussion today as we look to create a new and more just military justice system. 
Having lived for many years in Taranaki and having a wife of Taranaki descent I am only too familiar with the catastrophic and long-lasting effects of the armed forces’ unlawful attacks on Taranaki Maori. In the decade of the 1860s there was no such luxury as the New Zealand Bill of Rights Act to build on. In a war waged by the country on its Maori citizens in the interests of its settler citizens the question of whether the military system was effective and fair with regard to the brutalities that occurred was never raised or addressed. That history on which this nation is based a history of unlawful and violent attack on Maori subjects is a very compelling rationale for why we should support a reform of the military justice system in line with developments in human rights laws. 
But other factors have also convinced us of the significance of this legislation. We know of the strong representation of Maori in the Army and Navy but there is an under-representation of Maori at officer level across the board. In terms of real numbers that equates to a massive 1104 Maori in the Army just 66 of whom have reached the rank of officer. There are 162 Maori in the Air Force 16 of whom are officers. There are 462 Maori in the Navy and again a mere 17 have officer status. So when one in four in those services are tangata whenua and when there appears to be a glass ceiling operating it is only appropriate that the Maori Party takes up the issue of Maori representation in this bill. 
Another issue that has arisen in our reading of this bill is one that is a prevailing concern for the Maori Party—that is due access to justice. In August 1999 the then Chief of General Staff Maurice Dodson said he was concerned about slipping standards of behaviour occurring in the armed forces: “Recent events at Linton and in other camps have caused me serious concern about the current standards of discipline. There are disturbing trends emerging … offences involving dishonesty morality and those of a sexual nature are becoming more prevalent within the army. These types of offences would not be tolerated.” The opportunity to promote basic human rights and the entitlement that fairness and justice be extended to the employees of the armed forces as much as to civilians must be uppermost in the reform of the military justice system. 
 But it is not just a matter of being consistent with the New Zealand Bill of Rights Act and international instruments. The issue is also about the promotion of essential values such as manaakitanga and the aspiration to promote a fair and just society to work for the elimination of poverty and injustice and to create an environment where collective care and responsibility are important. In terms of indigenous justice such a kaupapa of collective responsibility is articulated worldwide—for instance in the United Nations Draft Declaration on the Rights of Indigenous People. Article 28 of that declaration states: “Military activities shall not take place in the lands or territories of indigenous peoples unless justified by a significant threat to relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. … States shall undertake effective consultations with the indigenous peoples concerned … prior to using their lands or territories for military activities.” That is another part of the puzzle in understanding the rationale for this bill. 
The objective of this bill is to improve the system in order to achieve amongst other things consistency fairness and simplicity. Was it fair that the Muriwhenua people had their lands appropriated in 1941 for the purposes of building an aerodrome at Kaitaia? The return of that land is still under negotiation in the Waitangi Tribunal. Was it fair that land taken at Raglan for an emergency aerodrome was never returned to its people when it was no longer going to be used as an airfield in 1953? Twenty-five hectares by Raglan harbour were taken by the Crown for defence purposes during the Second World War and later converted into a golf course. It was not until 1978 and subsequent to the arrests of 17 people that the land was returned finally to the people of Tainui Awhiro. 
Finally I want to refer to the issue of court martial dismissals referred to by Mr Mark that occurred in the armed forces and are referred to in this bill. In 2003-04 the Army made 33 court martial dismissals the Navy discharged five people and the Air Force dismissed four. We would be interested in learning the ethnic breakdown of those dismissed and we hope that information will be available to the select committee. The regulatory impact statement for the bill suggests that approximately 10 courts martial are held per year. In view of that we look to the Minister to provide a rationale to explain the blip that obviously occurred when 42 court martial dismissals occurred in the 2003-04 year. We know that for those 42 individuals the convening officer of the court martial system was a member of the executive was responsible for the prosecution and indeed appointed all of the court members. We know also that no appeal system was in place. That was hardly fair. It was not impartial and it was certainly not independent. At the same time as those courts martial were proceeding the New Zealand Bill of Rights Act specified that anyone charged with an offence has the right to a fair and public hearing by an independent and impartial court. Although the provisions of this bill propose to address those anomalies for the future we would ask that the select committee gives some consideration to compensation mechanisms or redress for those individuals who have suffered the injustice of those inconsistencies subsequent to the introduction of the New Zealand Bill of Rights Act 1990. 
We will be supporting this bill with as always the challenge that Tamati Kruger made when he reminded us of the importance of the pursuit of justice to attain human rights and to achieve our own self-determination: ka warea te ware ka area te rangatira; hongi hongi te whewheia hongi hongi te manehurangi; kei a au te rangatiratanga. 
[ 
Ignorance is the oppressor vigilance is the liberator; know the enemy know the destiny; determine our own destiny. 
] 
Kia ora tatou. 
JOHN HAYES (National—Wairarapa) 
: 
 I certainly agree that ignorance is the oppressor. I have never heard such an ignorant series of facts as those just touted out on the floor of this Chamber by the previous speaker who used to teach the children of this country. I am very glad that he is now in this House so we can bring him to heel and tell him the truth. For example when I think of my contacts with the military my observation would be that it is colour-blind. People in the military in New Zealand are colour-blind and anybody who thinks that they are not is off the planet. 
I can recall that back in the late 1960s Major General Brian Poananga was head of the New Zealand military force and today I think of Lieutenant General Jerry Mateparae who equally has the most senior position in our military. When that member talks about glass ceilings it just shows that he is speaking from ignorance and I am delighted that he is no longer putting bad ideas in the heads of our children. 
I will now come back to the Armed Forces Law Reform Bill. Parliament is looking at this bill and the National Party will be supporting it because there has been no substantial reform of the military justice system in New Zealand since the Armed Forces Discipline Act 1971. As my colleague Dr Worth pointed out it took 12 years before that Act came into force in 1983. We also have to focus on the fact that our domestic and international developments in human rights law—and by that I particularly mean the New Zealand Bill of Rights Act 1990—have necessitated a thorough review of the military justice system in New Zealand. This bill results from the review of the military justice system that was conducted by the New Zealand Defence Force probably under I think Kevin Riordan. It amends the Armed Forces Discipline Act 1971 the Courts Martial Appeals Act 1953 and the Defence Act 1990. 
I have sat through a certain amount of drivel coming from a number of earlier speakers here in this House this afternoon. Having been personally involved in peacekeeping operations involving New Zealand Defence Forces in other countries I can tell members that the sort of reason that we need our lawyers engaged in these processes is to do the exchange of letters with other countries. For example if New Zealand sends the HMNZS  
Endeavour 
 across to Bougainville to engage in peacekeeping operations there are rules of engagement and there are standard agreements between countries. But that is not what we are here to discuss today; we are here to discuss military discipline. 
We need this bill for two reasons. First we need it because at the moment there is a discrepancy between our three services in the disciplinary procedures that exist. Although the Army and the Air Force are in sync our Navy is not. Secondly we have to ensure that our disciplinary procedures especially courts martial are comparable with those of like-minded partners like Australia Canada and Britain. I think that this is particularly important given the increased level of deployments that have involved those other countries over the past 10 years. This will mean I think an improved court martial procedure including a new role of presiding judge and more appropriate Court of Appeal procedures. 
One issue that is bothering me and one that we will be looking at very carefully as the bill is considered in this House is the fact that the Defence Force’s legal directorate now has 28 officers compared with four just a few years ago. I keep wondering to myself whether this is part of a Government make-work scheme. It is certainly consistent with the huge growth in bureaucracy that is occurring under the tenure of Helen Clark and the “Green” Government—reflecting on Keith Locke’s comments I am not sure whether the Green Party will actually support this bill; time will tell. 
One aspect of this legislation seems problematical to me as well. I note that in the comment on consultation in the explanatory note of the bill the Government departments and agencies that were consulted are listed. As my colleague Dianne Yates read out these include Treasury the Ministry of Defence the Ministry of Justice the Crown Law Office and the Parliamentary Counsel Office. The note also states: “There have also been a number of meetings between the New Zealand Defence Force and both the Ministry of Justice and the Crown Law Office to settle policy.” 
I find it astonishing that there has been no consultation with the Ministry of Foreign Affairs and Trade given the strength of its legal division and its engagement on an international platform with many other countries. So I will also be looking as the bill progresses at why there has been such inadequate consultation. 
Those are the main points that I would like to register here in the House this afternoon. I reiterate National’s support for this bill’s progression through the House. 
TIM BARNETT (Labour—Christchurch Central) 
: 
 Very briefly I want to place on record that I consider the Armed Forces Law Reform Bill to be an excellent piece of work. It has been 5 years in the making and reading through it this afternoon I can see that it is very carefully structured in terms of its presentation to members of Parliament and covers its impact and the consultation undertaken. We as a House should recognise it as a model of its type. The work of the select committee and the Minister Phil Goff leading up to this point reflects that. 
On occasion we in this Parliament can agree on matters and work together to best effect. I place on record the contribution made by Commander Chris Griggs the military justice review project officer who has been working within the New Zealand Defence Force for a considerable period to produce this work. He is highly professional. This bill was obviously a labour of love as well as a labour of excellence. I trust that over the next few months the select committee will do good work on the legislation. 
Bill read a first time. 
Bill referred to the Foreign Affairs Defence and Trade Committee.referred to Foreign Affairs Defence and Trade Committee