Smith Lockwood: Visiting Forces Bill — Third Reading 
Smith Lockwood: Visiting Forces Bill — Third Reading 
[Volume:618;Page:14093] 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 I must say that the National Party supports this Visiting Forces Bill and is pleased to support its third reading. 
It is about time this Labour Government got off its butt and put this legislation through the House because it has a long history. One of the reasons the legislation is needed is that the old Visiting Forces Act of 1939 does not provide for status of forces agreements. Back in 1998 the previous National-led Government negotiated a status of forces agreement with Australia. That agreement is very important. There is quite an exchange obviously of military personnel between Australia and New Zealand and we often have Australian servicemen and servicewomen here in New Zealand so the previous National Government negotiated a modern up-to-date status of forces agreement. The problem is that this Labour Government did nothing to pass the legislation needed to ratify that agreement. In 1998 we negotiated a status of forces agreement with Australia—our most important ally the people with whom we most frequently exchange military servicemen and servicewomen—but we had no way of ratifying it. It has taken Labour 5 years—almost 6 years—to get off its backside and pass this legislation. 
One of the problems caused by Labour’s inaction over the legislation is that it conveys to Australia our most important friend and ally the people we work most closely with on military matters the feeling that New Zealand does not give much priority to defence and military issues. If our defence relationship with Australia mattered to this Labour Government surely it would have drafted this legislation which enables ratification of the status of forces agreement and passed it through Parliament in less than 5 years. That it did not is an indictment on this Labour Government and it adds further damage to the already somewhat tarnished relationship that this Labour Government has developed with our important friends and allies. The problem in our relationship with the United States of America is almost legendary now. The problem in our relationship with Australia is perhaps less well known although it did surface during a recent conference in New Zealand when the Australian Foreign Minister made some comments that were quite polite and diplomatic but did reveal that there are problems in our relationship. The lack of priority that Labour has given to advancing this legislation just confirms the impression that Australia has and that is bad for New Zealand. It shows the low priority that the Labour Government attaches to defence matters and to the vitally important issues surrounding our relationship with Australia. All I can say now is thank goodness that finally the Government got off its backside and had this legislation drafted and introduced into the House. It has passed through the select committee process and now is in its third reading. The National Opposition certainly will not be holding it up because it is needed to ratify that status of forces agreement. 
One of the slightly interesting issues around this legislation—and the Foreign Affairs Defence and Trade Committee did quite good work on this—relates to jurisdictional boundaries when we have visiting forces in New Zealand. Following the work of the select committee a reasonable solution has been developed in the legislation. Essentially where a status of forces agreement exists that resolves the issues of jurisdiction and where primary jurisdiction lies. But what this legislation must also provide for of course is situations where we have in New Zealand servicemen and servicewomen visiting from foreign countries with which we do not have a status of forces agreement. What the legislation sets out to do—and it is clause 8 particularly which covers this—is to state that where an offence is believed to have taken place that involves the property or persons of the visiting force or involves members of the visiting force carrying out their duties within the range of activity of that visiting force then the primary jurisdiction lies with the sending nation. That makes sense—that where an offence does not involve New Zealand citizens or New Zealand - owned property then the matter can be dealt with by the sending nation. Clause 8 as amended makes that clear and clause 15 as amended makes clear that New Zealand courts cannot then get involved and second-guess the work of the sending State in resolving the issue. 
But a slight complexity enters in terms of how the New Zealand Bill of Rights Act appears to affect this issue of jurisdictional boundary. Clause 18 is inserted in the bill to try to clarify the application of the New Zealand Bill of Rights Act. In fact clause 18(2) states: “This section is for the avoidance of doubt.” So clause 18 was inserted to try to clarify the situation in respect of the New Zealand Bill of Rights Act. All I can say is that if one reads clause 18(1) one finds it is not exactly clear: “The New Zealand Bill of Rights Act 1990 applies to acts done in New Zealand at the request or on behalf of a visiting force by a person to whom or body to which section 3 of that Act applies.”—meaning the New Zealand Bill of Rights Act. That is a very clumsy construction in my view given that the clause was inserted to try to avoid doubt. It is not very clear what it means. 
If we then go back to the commentary from the select committee to try to make sure we understand exactly what the clause means we read: “Finally we note that the New Zealand Bill of Rights Act does not apply to the acts of visiting forces. However if the visiting force’s jurisdiction is exercised over or assisted by a person or body to whom section 3 of that Act applies (ie not a member of the visiting force) then the New Zealand courts would have jurisdiction in respect of that exercise or assistance.” The select committee’s interpretation of the issue of the application of the New Zealand Bill of Rights Act as clarified by clause 18 appears to be that the New Zealand Bill of Rights Act may actually be involved in respect of whether New Zealand courts are to exercise primary jurisdiction. That appears to be what the commentary is saying. It seems to me a little complex because although clause 8 sets out the primary jurisdictional issues it does not mention the New Zealand Bill of Rights Act. It is mentioned in clause 18 and clause 18 appears to add a dimension to clause 8 in respect of the boundaries of primary jurisdiction. 
Sadly I do not think I was here when the bill went through its Committee stage. It would have been good to have the chance to question the Minister of Defence more closely over the interrelation of those two clauses and exactly whether the New Zealand Bill of Rights Act of itself has impact on the jurisdictional boundaries. That appears to be the case from what the select committee has said. 
All I can say is that essentially the bill sets out the issue of jurisdictional boundaries—who is responsible for prosecuting offences when we have visiting forces in New Zealand. The only element that to me is perhaps not quite as clear as it might be—despite the efforts to make it clear—is the application of the New Zealand Bill of Rights Act. Given that that was why clause 18 was inserted in the bill it is a wee bit of a shame that the construction of the language is so clumsy as to leave it not as clear as it might be in my mind. And it is such an important issue; jurisdictional boundary is important when we have visiting forces in New Zealand. I suppose the one positive thing is that we could say that any doubt around this area would encourage sending States to negotiate a status of forces agreement with New Zealand because that certainly would clarify the issue. 
Despite that slight concern about jurisdictional boundaries and how the New Zealand Bill of Rights Act affects that issue overall the bill is a sensible measure to replace the Visiting Forces Act of 1939. It finally enables us to ratify our status of forces agreement with Australia. All I can say is thank goodness the Labour Government has finally got off its lazy backside and put this legislation through the House. It has taken the Government 5 years. It is unfortunate that that sends a negative message to Australia about the priority this Government attaches to our relationship with Australia.