Locke Keith: Crimes and Misconduct (Overseas Operations) Bill — Second Reading 
Locke Keith: Crimes and Misconduct (Overseas Operations) Bill — Second Reading 
[Volume:615;Page:11059] 
KEITH LOCKE (Green) 
: 
 The Green Party is happy to support this bill. I think it is important that there be proper legal jurisdiction over New Zealanders serving overseas in the police or as part of a civilian component of an operation such as we have currently in the Solomon Islands. Of course it does not include people who may be in the Solomon Islands separately from the Government such as members of non-governmental organisations; they have an independent status. But those who are part of the official Government operation be they police civilian or military should be covered by this jurisdiction. 
It is good the way this bill has evolved. As the commentary from the Foreign Affairs Defence and Trade Committee states the agreement in relation to the Solomon Islands that led to this legislation concerning the operations and status of police armed forces and other personnel deployed to the Solomons was brought before the select committee. It is good that as a result of the consideration in this Parliament by the Foreign Affairs Trade and Defence Committee of the treaty examination flowing from my International Treaties Bill more attention is being paid to international treaties by this House and its select committees and the Ministry of Foreign Affairs is distributing a list of treaties under negotiation periodically. It allows us to engage with issues like this on a more informed basis than in the past. 
This legislation is in the context of status of forces agreements. One of the things we note about status of forces agreements—the agreements that govern the operations of one country in another country particularly when they concern military and police operations—is that they are different for each country. There are virtually no two status of forces agreements that are identical. They depend very much on the particular situation. If we look at the general picture of status of forces agreements—and this relates to the point Tony Ryall brought up in an earlier contribution—we see there are generally three categories of offences. Firstly there are offences committed within the overseas force. In this case this legislation applies mainly to the New Zealand contribution to the Solomon Islands. These are offences that are internal to the overseas force. If one New Zealand police officer beats up another New Zealand police officer in his or her barracks then that offence is internal to the overseas force and it is generally accepted in status of forces agreements that any criminal action would be undertaken under the jurisdiction of the country contributing the overseas forces rather than it coming under domestic jurisdiction. 
At the other end of the scale are offences committed against locals by personnel of the overseas force who are off duty like an off-duty police officer raping a Solomon Islander. Of course we do not expect that to happen in the case of our contribution. I think Tony Ryall mentioned sex offending by American soldiers in Okinawa as a background to that. If it is clearly an offence against local people or against the property of local people then generally the case is prosecuted by the local jurisdiction. 
In the middle of these two extreme categories there is often a grey area. The soldier or police officer might be on duty and performing his or her functions but commits a crime like getting enraged and unnecessarily hurting or killing a local person or destroying some local property. That is a grey area. 
 The term “concurrent jurisdiction” which appears in the commentary on the bill and was mentioned by Phil Goff earlier means theoretically that there could be jurisdiction by the local country or by the overseas force there. In the Solomon Islands case it seems that the intent of this bill in that sort of grey area is to take the jurisdiction back to New Zealand or even to intrude into the area of off-duty people committing an offence against a Solomon Islander. There are of course particular arguments in the case of the Solomon Islands and although the bill is not specifically a Solomon Islands bill it is shaped with that particular operation in mind. There is in the Solomon Islands case an envisaging that the jurisdiction would be very much New Zealand’s partly because of the lack of at this stage—and particularly when the troops and police went in—an operating judicial system; so one could not really prosecute the overseas force through that jurisdiction. But as we go along in the Solomon Islands—and in other countries where we might be engaged in similar peacekeeping operations—we want wherever possible the jurisdiction in status of forces agreements to be local. 
Of course a status of forces agreement will always envisage some situations where the discipline is that of the foreign force but we want as much local jurisdiction as possible because that is part of the process of recognising the sovereignty and self-determination of the country in which the troops police or civilians are operating. We want to see that in the Solomon Islands too. We want to see the Solomon Islands restore its judicial system and its police system so that it can properly prosecute people who commit offences. However we do have to be wary and the point Tony Ryall made is an important one—that the local people do not feel that the foreign troops police or civilians on their soil are getting away with crimes against the local people or their property. That is the background of the case he mentioned in Japan I think in Okinawa where there is a big US base or else in the Philippines and South Korea where there have been similar very high-profile cases involving American troops over the years. Those incidents can produce huge hostility in the local populations if they feel that justice is not being done because soldiers or police are being tried exclusively by the overseas forces and are excluded from access to the court of the country concerned. That is something we have to consider very strongly. 
The other tricky point in the legislation which was mentioned by Phil Goff is if New Zealand had a third-country national involved in its contingent—and we may have that in the Solomon Islands particularly in the civilian component of the operation whereby specialists who are not technically citizens of New Zealand are nevertheless part of our organised force there. It is good that the law provides for the Attorney-General to have discretion as to whether to proceed with a prosecution on a crime that might be a crime under New Zealand law but may not be a crime under Australian Canadian or the law of whatever country the person who is part of the New Zealand force comes from. 
It is also good that the bill excludes a double-jeopardy situation whereby if there is some prosecution in the local jurisdiction then when the person gets back to New Zealand he or she cannot be tried again even though New Zealanders might grumble that the person got off lightly because of the nature of the judicial system or the penalties in the local country. We do not want a situation of double jeopardy. 
It is recognised in the commentary on the bill provided by the Foreign Affairs Defence and Trade Committee that the police for example have their own system of dealing with misconduct that is not a criminal justice offence as such but could involve discipline on top of the offences that a police officer may have committed in a foreign jurisdiction. I think the bill covers most bases pretty well but I finish with the caution that we want to get to a situation where as much as possible of the prosecution is done in the local jurisdiction and not back in New Zealand’s.