Power Simon: Visiting Forces Bill — In Committee 
Power Simon: Visiting Forces Bill — In Committee 
[Volume:618;Page:13751] 
SIMON POWER (National—Rangitikei) 
: 
 I have nothing to add to the Hon Peter Dunne’s comment. They are spot on. We are into Part 2 where some of the clauses the member raised will be examined. I was interested in his reference to clauses 12 to 14 and perhaps at the risk of asking across the Chamber I suspect I will leave those clauses to Mr Dunne as I deal with clause 8 because I think this is where the Foreign Affairs Defence and Trade Committee was put in the position where it had to produce a new clause to reflect the jurisdictional dilemmas I guess that we found ourselves in. Because frankly for those of us who are not experts in military law—I am not sure whether we have any in the House but I suspect that Richard Worth or Ron Mark may be— 
Ron Mark 
: I used to be in the front. 
SIMON POWER 
: He used to be in the front. I am certainly not an expert in military law but reading it as a lawyer I found it difficult at first glance so it is worth walking the Committee through this. Because what the new clause says—and the officials are to be congratulated on working their way through this; it was not straightforward—is that in the absence of a status of forces agreement the service authorities of a visiting force to another country or State have the primary right to exercise criminal and disciplinary jurisdiction in respect of certain offences. So essentially the bill says the controlling country of those forces gets the first shot shall we say at the alleged offence. 
In the absence of new subclause (1A) not covering those offences—and they are quite specific—and the matter not falling within that primary jurisdiction then it reverts to a secondary jurisdiction; that is the jurisdiction of the New Zealand courts or the host country in this case. 
 The difficulty comes—and this is where the Foreign Affairs Defence and Trade Committee was concerned about the randomness if there is such a word of these types of enforcements—if we cannot get agreement at that point as to whether it is the primary jurisdiction that is being exercised; that is the controlling authority the controlling State the controlling country of the forces or the secondary jurisdiction of the host nation New Zealand. Well then it seemed that it was simply a matter of diplomatic chit-chat and of the two countries getting around a table and saying: “Well Bob I suspect that you’d better handle this one. It looks a bit untidy it falls through the cracks a bit.” 
That was the uncertainty I guess that members of the select committee were a bit concerned about. I know that my colleague Ron Mark will be anxious to make a contribution on this point because it seems to me that it is a bit messy when military law and international law in respect of jurisdiction falls back on diplomatic niceties. Because the certainty around drafting law and having clear and concise language versus the kind of “diplo - cocktail party speak” that goes on between diplomats I would have thought are two worlds apart. So that is a concern where if we are not able to get a clear response to whether the offence falls within new subclause (1A) or new subclause (1B) of clause 8 that in the end I guess is just a matter of those countries negotiating. The Minister may well correct me if I am wrong on that but that seems to be the position as I understand it. 
I am not sure that that is wholly satisfactory. But I am sure that we looked at it carefully enough in the select committee to say that well there is probably not much else we can do; that if it is not clearly primary or secondary jurisdiction there is a bit of a fall-back to that sort of diplomatic chinwag. We do not live in a perfect world—if we did the Budget would not have passed—so we will keep pressing on with this legislation. I would be interested in the comments of the chairman of the select committee the Hon Peter Dunne. I would certainly be interested in Ron Mark’s comments and very interested if the Minister in the chair would be able to clarify for me whether my interpretation of the fall-back position is correct.