Mercenary Activities (Prohibition) Bill — Second Reading Instruction to Committee In Committee 
Mercenary Activities (Prohibition) Bill — Second Reading Instruction to Committee In Committee 
[Volume:618;Page:14235] 
Mercenary Activities (Prohibition) Bill 
Second Reading 
Debate resumed from 11 May. 
Madam DEPUTY SPEAKER 
: Keith Locke was speaking. He is not here. 
Sue Kedgley 
: Madam Speaker— 
LINDSAY TISCH (Junior Whip—National) 
: 
 I raise a point of order Madam Speaker. If the member wishes to take another member’s call then she has to seek leave to take up the remaining time available. 
Madam DEPUTY SPEAKER 
: Yes. Sue Kedgley you need to seek leave from the House to take the remaining 8 minutes of your party’s call. 
SUE KEDGLEY (Green) 
: 
 I would like to do that. I seek leave to complete Keith Locke’s speech. 
Madam DEPUTY SPEAKER 
: Is there any objection to that? I call Sue Kedgley. 
SUE KEDGLEY (Green) 
: 
 I speak on behalf of Keith Locke who was speaking when the debate was interrupted. The Green Party supports this bill so that we can help to get rid of the scourge of mercenaries—soldiers of fortune who kill people for personal profit. This bill will enable New Zealand to implement the International Convention against the Recruitment Use Financing and Training of Mercenaries. 
The disastrous situation in the Congo today has its origins not only in Belgian colonialism but also in the use of mercenaries immediately after independence by Western political and business interests. The mercenaries overthrew the radical Lumumba Government and slaughtered thousands of people. Thankfully political developments in Papua New Guinea prevented Sandline International mercenaries from going into Bougainville so instead we were able to have peace negotiations there and a peace settlement. 
Today there is much discussion about whether any of the 20000 foreign contract bodyguards and security officers in Iraq qualify as mercenaries under this bill and whether any of them are New Zealanders who could be prosecuted under it. The bill states that a mercenary is one who for private gain takes part in hostilities and that mercenaries’ remuneration should be substantially in excess of that of locals unless they are involved in a concerted act of violence in which case they need be rewarded only with significant private gain. 
Clearly foreign bodyguards in Iraq earn several times as much as Iraqis—anything up to $3000 a day—so on that count they would be classified as mercenaries under this bill. Some of them take part knowingly in hostilities with what is deemed to be an enemy force. A good example of real mercenaries are the commandos of the US firm who on 4 April were involved in an intense firefight around the US Government headquarters in Najaf against Shiite militia and who used company helicopters to bring in more ammunition and ferry out a wounded marine. At the other end of the scale a Kiwi with a sidearm who was escorting around a BBC cameraperson would not qualify as a mercenary under this bill. 
One of the ruses that Governments use to try to hide mercenaries is to say that soldiers are really just a part of a national army. However the test is not just the amount of money that hired foreigners earn but whether they are independent of the command structure of the local army and not subject to the same discipline and rules of engagement. Real mercenaries have that degree of autonomy. Mike Hoare’s mercenaries in the Congo in the 1960s and mercenaries in Papua New Guinea in the 1990s were never part of the local army in a real sense. In fact a common-sense reason why Governments hire mercenaries—and often they do it covertly—is basically to get them to torture people and to do the dirty fighting that is outside the Geneva conventions. They can then say that it was not their soldiers who committed the terrible atrocities. Another ruse that people have used to try to get around the anti-mercenary convention is to define those taking part in hostilities only as direct combatants with weapons when clearly everyone in the command structure of a mercenary unit can and should be defined as a mercenary. 
There certainly may be New Zealand mercenaries in Iraq. We know that six former members of the police’s Special Tactics Group have gone there as have former SAS people and they should know that when they do they may have trouble with this law if they use arms in military hostilities in Iraq. Their Kiwi recruiters need to be aware of that too. Companies like Red Key Security are advertising in New Zealand papers. 
The Green Party is disturbed about the complicity of the New Zealand Defence Force in that recruitment. For example Brigadier Southwell provided a testimonial for a Defence Force sergeant who resigned last year to operate in Iraq. The brigadier wrote that he had no hesitation in recommending the sergeant as a leader of a close protection team in even the most severe of security situations. If this bill had been passed at that time Brigadier Southwell could arguably have been caught up in its provisions and ended up before the courts if that close protection team had been proved to be a mercenary unit. 
Just because our Defence Force is operating alongside the Americans and the British in Afghanistan and Iraq—unfortunately in the opinion of the Green Party—that does not give New Zealand Defence Force officers the right to recruit mercenaries for the American or British authorities in Iraq. Hopefully this bill will put a stop to that sort of behaviour and for that reason the Green Party strongly supports the bill. 
JUDY TURNER (United Future) 
: 
 I will take a very brief call on the second reading of the Mercenary Activities (Prohibition) Bill. This bill according to its commentary contains provisions required to be implemented in New Zealand law to enable us to comply with the International Convention against the Recruitment Use Financing and Training of Mercenaries. 
There was some concern about the small number of parties that have so far ratified that treaty and questions were raised as to whether New Zealand should for that reason tarry in terms of signing it. I think the point made at the Foreign Affairs Defence and Trade Committee which is reflected in the commentary is that New Zealand should make up its own mind and not necessarily always wait for the actions of other countries. We should be autonomous in our decision making in that regard. 
So the key issue is whether New Zealand is willing to subscribe to the particular obligations the treaty imposes. United Future believes that that is an appropriate action—mainly because we think this bill needs to act as a deterrent so that New Zealanders who may be contemplating becoming mercenaries would give it a second thought. We would never want New Zealand to be considered a safe haven for those kinds of activities. 
It is kind of interesting too that over the years we have heard reports which we often put down to urban myths of private armies training in obscure parts of New Zealand. I have always had huge amounts of doubt but in the new climate in which we now find ourselves with the rise of terrorism I think we would be foolish to neglect this issue and to think that somehow because of our distance from other countries we are somehow excluded from the possibility of New Zealand being a place where mercenaries may want to set up and conscript people to work for their cause. 
There are also some interesting facts listed in the commentary about the definition of a mercenary. It is interesting that the scope of this legislation has been very specifically targeted to definitions that are based on provisions in the Geneva convention. There has also been an attempt to look at definitions that define the difference between people who take part in coups and terrorists attacks and those who take part in other events that may fail to reach the definition of being full-blown wars but nonetheless are aggressive acts the forces for which are supplied by mercenary armies. I finish by saying that United Future is very pleased to support this bill for the safeguards it will provide. 
Dr WAYNE MAPP (National—North Shore) 
: 
 National is opposing this bill and there are particular and deliberate reasons why we do so. In fact the set of circumstances set out by the Green Party tells us why the bill as it has come back from the Foreign Affairs Defence and Trade Committee fails to meet the requirements necessary for National to support it. 
National did vote for this bill to go to a select committee and we do recognise that there is a category of people—the private army if one will—whose activities should be prohibited. A number of people from across various parties have referred to cases in particularly Africa where persons are recruited who would never form part of the armed forces of a particular nation but who are there effectively to create mayhem. They are not in the category of bodyguards and they are not contracted to assist—as for instance occurred in Iraq where Mr Bremer had privately contracted bodyguards—but they are there in the classical sense of the mercenary. They are a private army undertaking armed conflict creating havoc death destruction and instability and often overthrowing legitimate Governments. If the bill was limited to that and precisely aimed at that National would have absolutely no doubt that to support it was the right thing to do and I believe that every party in the House would have shared that view. 
I guess the benchmark is this—and I will refer to the situation of my colleague Ron Mark because it has been referred to in the past. As he has stated many times in this House he was contracted to join the Sultanate of Oman’s army. It was largely arranged through the British Government so he was in a sense an instrument of foreign policy. There would be no doubt and it would be common knowledge that people recruited in those circumstances were paid more than local citizens; that was never in any question. Yet this bill would capture someone in the situation that Ron Mark was in in 1990. 
The action of people with particular skills joining the army of a legitimate Government in order to provide those specialist skills is a long tradition and is commonly used by many countries—often with the blessing of many democratic countries because it is designed to reinforce stability in those countries and in fact has done so. If the select committee had used its wit and wisdom to ensure that the situation Major Mark was in was excluded then there would have been no doubt that National would support the bill. But to find a definition set out carefully in clause 5 that was fully considered by the select committee and that still effectively covers that situation—the Greens say it does and so does the Government—tells us that the bill is wrong. Surely the Government should have taken on board the countries that are not signatories: Britain the United States Australia and Canada. Those are countries from which highly skilled military professionals are often recruited by particularly Middle Eastern nations to form part of their armed services. Those people are under the normal chain of command; they are not a private army or anything of that nature. 
For this bill to capture them is I think a case of New Zealand essentially trying to have an expression of political correctness. The idea of prohibiting mercenary activities sounds reasonable on the face of it. What person would want to support a mercenary in the classical sense? The answer is that very few people would. But the way that this convention was pulled together and the way that the select committee did not then do a proper job of limiting the application of the bill show that the Government was not serious about the convention but rather simply wanted to have a record of being some kind of model citizen. I wonder whether the New Zealand Government would ever prosecute in that situation—because I cannot imagine that it would—and if it does not intend to do that then what is the point of passing law like this? 
The reality is that this bill should not be passed in the form it is in. The select committee had the opportunity to come up with a sensible definition but it failed to do so. One has only to look at a number of situations in the Pacific and I am not talking about the Sandline International situation. For instance if any Pacific nation decides to employ a New Zealand helicopter pilot for quite legitimate reasons and to have that person in its armed forces who almost certainly will be paid more than the local people—let us be realistic about this—then such a person is likely to be caught by the convention. That frankly is ridiculous. It is bad law to sign up to conventions that are there for the warm glow of it if one will rather than to take a reasoned and sensible approach to prohibit the genuinely egregious behaviour of the private army operating outside the normal military conventions. The British Government the United States Government and many other European Governments have said this kind of convention simply does not take account of the real world. 
The issue of Iraq has been mentioned recently—and so it should be; it is an important issue—and there are literally thousands of people there who are highly skilled and undertaking a wide variety of tasks. I mentioned the case of Mr Paul Bremer. His immediate security was privately provided. I absolutely guarantee that those security personnel were earning more than a Private First Class in the United States army. 
Peter Brown 
: You think so? 
Dr WAYNE MAPP 
: Yes I hazard a guess that they were earning a little more than a Private First Class. Yet that activity which clearly has approval at the highest levels of the United States Government would be caught by this convention. Does New Zealand really think it is right for such people to be caught by the convention? I would not be at all surprised if the Prime Minister either knowingly or unknowingly had the benefit of such protection herself when she visited Iraq. Surely she is not suggesting that those people should be at risk of prosecution yet that is how this convention is worded. It is wrong to pass conventions that are so poorly drafted as to capture a wide class of people whom we would think are doing a good job—helping peace preserving security and providing countries with the ability to get ahead—just in order for Mr Goff to go on some sort of international stage and say that New Zealand is a party to the International Convention against the Recruitment Use Financing and Training of Mercenaries. We do have to take a more critical approach to the precise wording work out precisely what we are really against—and it is clear what that is—and also work out what we say is OK. This bill as presented to the House simply does not meet that threshold test. 
Hon KEN SHIRLEY (ACT) 
: 
 That was a very compelling speech from Captain Mapp and I have certainly taken on board the very many good points he made and I concur with them. I think the key point he made is that the International Convention against the Recruitment Use Financing and Training of Mercenaries is nothing other than UN feel-good pap that this Government again rushed out there to sign up to without scrutinising and thinking it through. The convention has not been signed by our traditional allies Britain the United States Canada and Australia—not one of them signed this convention. Why did the New Zealand Government rush off and sign this convention and why now today does it want to legislate to give it effect? This is a classic example of what this Government does—and now Major Mark has joined the debate and I hope members also hear from him shortly. The Kyoto Protocol is another classic case of UN feel-good pap. We know that it will not work and that it is ineffective but bureaucrats and officials rush off to those meetings sign up and commit us to it. In this instance we know that the United States Canada Australia and the United Kingdom have not signed the mercenaries convention. They disagree with it so why on earth should New Zealand sign that convention and here today try to legislate for it? 
There have been some very good examples of our getting into very serious problems with definitions. Modern military activity is not just a matter of a bunch of foot soldiers being issued with muskets and lining up against each other; it engages an incredibly high level of technology and support services in terms of the weaponry and the deployment. The example was given of whether a private helicopter pilot who was assisting Papua New Guinea Fiji or Tonga would come within the definition of mercenary in this instance and it seems that that pilot would. But the bill then goes on to state that a computer consultant looking at the computer systems and information technology that control weaponry would certainly come under the definition of a mercenary. So it is bad legislation. We do not support it. 
An example was also given of the Iraq situation. Tens of thousands of people who are assisting in the post - Saddam Hussein reconstruction would fall within the definition of mercenary in this bill. It would be foolish to expose them to prosecution and to the provisions of what is very bad legislation. So the ACT party will not be supporting this bill. 
The example was also given of Major Ron Mark who was a mercenary. I have his attention now. 
Dr Wayne Mapp 
: No he wasn’t a mercenary. 
Hon KEN SHIRLEY 
: He was a mercenary and he should be proud of it. He did a very good job for the Sultan of Oman. The other classic example is the Gurkhas who have a very proud tradition within the British army. They are actually paid less not more than the normal British troops which has been a real problem for them for some time. They would clearly be defined as mercenaries within this bill even though they have done a very good job in many areas and theatres of conflict around the world. 
I see no redeeming features in this bill whatsoever. I ask the Labour Government for goodness’ sake to look at things as an independent sovereign State rather than just signing up to UN pap. That is what it has done with this example. It should not be signing up to and implementing this convention. It is foolish and the ACT party will be opposing it strenuously. 
JUDITH COLLINS (National—Clevedon) 
: 
 The National Party has made it very clear—particularly in the succinctly put speech by Wayne Mapp— 
Hon Ken Shirley 
: Captain Mapp. 
JUDITH COLLINS 
: —who I note was a captain—that we are not in favour of the activities of mercenaries as the Green Party was certainly speaking about before. What we are in favour of is accepting reality. People in the circumstances of Ron Mark—who is now a member of this House—when he was with the Sultanate of Oman would be caught by this bill. Quite clearly that is ridiculous. 
We have talked a lot today about the fact that none of our traditional allies—when we had allies—and friends have signed up to this treaty but I think it is really important to take a moment to remind the House who has signed it. It is stunning. I will read them out: Azerbaijan; Barbados; Belarus; Belgium which was so good against the Germans did members not find; Cameroon; Costa Rica; Croatia; Cyprus; Georgia and I remind members that that is the country not the State; Guinea; Italy which at least is well known; Libya—how about a bill on terrorism; no that is right; the Libyans have now sorted themselves out—Maldives; Mali; Mauritania; Qatar; Saudi Arabia; Senegal; Seychelles; Surinam; Togo; Turkmenistan; Ukraine; Uruguay; and Uzbekistan. The stunning comment we make here is that the vast majority of those nations did not exist 20 years ago. The only reason they do exist is the breakdown of the cold war and the work that the Americans and the other Western countries did to free them from the yoke of socialism. 
John Carter 
: Communism. 
JUDITH COLLINS 
: Communism as Mr Carter quite correctly says. There is not much difference I say to Mr Carter. That is what we are signing up to. We are in great company with that lot are we not? 
Dr Wayne Mapp 
: Lots of democratic countries. 
JUDITH COLLINS 
: There are lots of democratic countries as Mr Wayne Mapp says! That is what we are signing up to. 
I was concerned by what Mr Shirley said about the situation of the Gurkhas and I would like clarification from a Minister that the Gurkhas would not be included in the legislation because their deeds are legendary. Their courage their stamina and their loyalty to the British Crown have been utterly legendary. We need to take that into account. 
Having read the bill and looked at the definition of “mercenary” I am concerned as to whether the Papal State might have a bit of a problem. Does it not have the Swiss Guard? Is the Swiss Guard not in fact a private army that is made up of mercenaries—that has always been made up of mercenaries? Every Catholic person in this Parliament should consider that he or she is about to outlaw the Swiss Guard. 
The comment was made in the House that the Prime Minister when she was in Iraq for her photo opportunity might in fact have been protected by some of these dreadful contractors who are paid more than the locals for doing their jobs. Frankly I can understand why they might need to be paid more than the locals to do their jobs—in more ways than one. Those people might have protected her. Did she not travel through Italy in a car at 200 kilometres an hour to visit the Pope and was she not looked after by the Swiss Guard at those times? Was that not so? 
Hon Ken Shirley 
: She wore a dress! 
JUDITH COLLINS 
: I think it was a skirt I say to Mr Shirley; we should get it right. I think so. So really will that not be a problem—the fact that the Papal State might have an issue with the legislation? Is that not a problem? 
Where is the great call for the legislation? Where is the great need? Is it not all about the fact that some New Zealanders have gone to Iraq to help out the Iraqi people in their liberation? Is that not what it is all about? The Prime Minister is brassed off that they can earn more money there—and they should as they are in great danger and have shown the way to a lot of other people who would like to see that happen as well. They are doing some really good work. 
Occasionally I wonder about people who go on about peacekeeping. Who do we think makes the peace? It is the people who put their lives on the line day after day. I heard the Green member speaking about mercenaries and war. She talked about “clean war”. My dear old dad who is long departed now spent 4 years overseas in the Second World War as an engineer. He was in the front line as engineers were. He always said to me that the people who say war is fun and glorious were not there. The people who say there is such a thing as “clean war” were not there. The fact is that not only do mercenaries commit acts of barbarity against each other and others but so do armies generally. That is the way it works in war. War is hell it has never been any different and it never will be. 
There will always be war when there are people who will not accept the democratic process and will not accept that people have the right to determine their own result for their country. That is what happens. If we do not stand up for democracy we will be calling on mercenaries ourselves. One of the things that is really obvious in the bill is that it will not allow our people to be able to make their own decisions about where they want to be and what they want to be doing. I wondered whether this bill would have applied—if it had been in place 60-odd years ago—to the American servicemen who went over and served with the British before Pearl Harbor. Of course if they were paid more than the locals then yes it would have. Those people risked their lives fighting against fascism and in this House today we are condemning them provided that they were in fact paid more. We need to be able to accept that some people have specialties—Mr Mark obviously had a specialty which he took to the Sultanate of Oman. We are condemning them for using that for going into harm’s way without someone demanding that they do so. Because they exercise their free will they are condemned. 
I completely support the comments made by my colleague Mr Mapp and I say that this bill is an unnecessary piece of feel-good rubbish that is being put together by this Government so that we can hang out with the likes of Qatar. 
A party vote was called for on the question  
That the amendments recommended by the Foreign Affairs Defence and Trade Committee by majority be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Question agreed to. 
A party vote was called for on the question  
That the Mercenary Activities (Prohibition) Bill be now read a second time. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Bill read a second time. 
Instruction to Committee 
Hon JUDITH TIZARD (Minister of Consumer Affairs) 
 on behalf of the 
 Minister of Foreign Affairs and Trade 
: I move  
That it be an instruction to the Committee of the whole House on the Mercenary Activities (Prohibition) Bill that it take the bill part by part. 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 70 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
In Committee 
Part 1 Preliminary provisions 
Dr WAYNE MAPP (National—North Shore) 
: 
 The core part of our whole concern in relation to this bill is contained in clause 5 which relates to the definition of “mercenary”. As I and other colleagues like Judith Collins have indicated our concern is the way the definition would attack perfectly legitimate activities—activities that if the Government actually thought about them it would see it is not in its own or New Zealand’s interest to try to prohibit. In fact as I suggested in my speech in the second reading probably our Prime Minister has experienced some advantage from such activities in her visits to Iraq particularly and perhaps also to Afghanistan. The problem is that clause 5(1) states that a mercenary is defined as any person who is first recruited within New Zealand and second whose primary purpose is to take part in hostilities and third who is paid more than persons of a similar rank or functions in the armed forces. I guess it is fundamentally that third part of the definition that is the problem—paid more than combatants of similar rank and functions in the armed forces. That means that the provision then covers people who are members of the host State’s armed forces. 
I will use the example of Major Mark because it is one that people understand. There are many other people whom I have known over the years who have served in various Middle Eastern armies in specialist roles. Many of those people know perfectly well that they will be engaged in hostilities. They are at a time of life when there is a certain sense of adventure if I could put it that way so that has its own attractions and of course they get paid more in the host State. But they are nevertheless part of the legitimate army of that nation. In short they are not a private army. Yet under clause 5 such a person is deemed to be a mercenary. If the Government had thought about it it surely would not be its intention that that sort of activity be caught. That is the first category. 
A second category is the increase in the numbers these days of private contractors. I am aware that clause 5(2) does exempt persons who are involved in domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property. But again let us be realistic. A lot of those people are doing a little more than policing activities. They are certainly working under the authority of in the case of Iraq the occupying powers—both Britain and the United States—but one has only to observe the level of equipment they have to know that they are not conventional police officers. They have experiences that take them well beyond that. Of course that is the reason they are chosen; they are incredibly highly skilled in a very dangerous environment. Sometimes they are involved in rescue missions and so forth. The question becomes whether it is intended that they be caught as well by the Government. Surely that cannot be the case. 
For both those reasons National was opposed to the bill as it came out of the Foreign Affairs Defence and Trade Committee. If it had been confined to the private armies that have been the scourge of so much post-colonial activity in Africa we would say yes the convention had a legitimate goal. But the fact that Britain Australia the United States and Canada have all chosen not to sign it is because they know it catches the very activities that those four Governments and frankly many New Zealanders have been involved in. Thus the bill is badly conceived. 
RON MARK (NZ First) 
: 
 I rise to congratulate Dr Wayne Mapp a former serving officer in the New Zealand Army on his insight into this legislation and what it means. I congratulate the National Party and the ACT party also. It seems that only members on the Opposition side of the Chamber understand the realities of maintaining international law and security and the responsibilities—and sometimes the price—that seem to come with those rather challenging tasks. Is this Government not interesting! It is so concerned and interested in this bill that its members have private little chit-chats all around the Chamber. They do not even take calls and that is what the country gets as good governance. I am astounded at that. 
If members of the Government were to read the bill and pay some attention to it they might like to consider clause 4 “Interpretation” and in particular clause 4(1)(a). [ 
Interruption 
] Mr Barker may like to call me mercenary but I was quite— 
Hon Rick Barker 
: I never said that. 
RON MARK 
: Those members were quite happy to have me stand as a candidate for them straight after I came back from Oman. They did not have any problems with that then. They knew full well my military service background yet they selected me. If those members interject then they deserve a slap. Mr Hughes should read clause 4(1) and consider this point: a “concerted act of violence means an act of violence designed to (a) overthrow a government or otherwise undermine the constitutional order of a State; or (b) undermine the territorial integrity of a State”. 
I ask the Government whether we should stand idly by and not protect the world from chaps such as Saddam Hussein Tariq Aziz and “Chemical Ali” Hassan al-Majid who appeared on page B1 ofthe  
Dominion Post 
 this morning. Are they the sorts of people this Government does not want to see overthrown? The question is this. When the Governments of States decide that it is time to do something because there is a rogue State—a nation that jeopardises the security of the rest of the world—traditionally they have used both covert and overt means to achieve that end. New Zealand has sat as a partner in many alliances and accepted that and agreed with it. Let us take the East Timor situation. How many mercenaries were involved behind the scenes in helping East Timorese fighters to fight for their freedom? They were people whom Keith Locke and Matt Robson championed. How many mercenaries were hired behind the scenes to help to overthrow Pol Pot? Those were people whom Keith Locke championed and people whom Matt Robson said he abhorred. How many people would have been hired—or could have been hired—to help to alleviate the situation in Rwanda because the legitimate States were sitting on their hands doing nothing? How many clandestine covert operations have been sanctioned around the world involving the use of contract personnel in order to enhance the security of the greater free world? There have been tens of thousands and that is the truth. 
Members should think of the Congo and of Afghanistan in the 1980s. Whom did Britain the United States and by implication the entire British Commonwealth sanction to go into Afghanistan? I look at the United Future member who will vote for this legislation. Everyone tells me that he or she absolutely detested the Taliban. Who were the people who helped the mujahideento chuck the Soviet Union out of Afghanistan? For one there were legitimate defence forces such as the SAS and the CIA. But a large number of contract personnel were also put in there and sanctioned and approved with the knowledge of legitimate States such as the United States and the UK. 
Hon JUDITH TIZARD (Minister of Consumer Affairs) 
: 
 Just for the sake of clarity I suggest that the Committee looks carefully at clauses 4 and 5 where the nature of mercenary activities and of mercenaries is defined. For a person to come within the bill and the convention he or she would need to take part in hostilities in an armed conflict. The focus is on those people actually taking part in hostilities in a combative role. Many of the examples given by Mr Mapp today seem very unlikely to fall within the definition of the bill. For example the security guards for the Prime Minister would clearly fall outside the definition of a mercenary. Clause 5(3)(d) specifically states that people participating in “domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property” are not mercenaries. 
In addition persons who are providing assistance with reconstruction and with the training of local armed forces provided they were not undertaking a combative role would not be covered. Of course a person who would be defined as a mercenary also has to be recruited within New Zealand or elsewhere in order to take part in hostilities and armed conflict has to be taking part in hostilities for private gain and has to be promised or paid by or on behalf of a party to the armed conflict material compensation substantially in excess of that promised or paid to combatants of similar rank and functions. So to work with another armed force if that was in the normal course of for example working in Oman would be perfectly legal and would not be defined as being a mercenary. 
There is a lot of nonsense being talked by members of the Opposition. That is their job but I wish they would stick to the legislation. 
DEBORAH CODDINGTON (ACT) 
: 
 I ask the Minister what is wrong with fighting. What is wrong with being paid to fight? What is wrong with being paid more to fight than those of equal rank in the armed forces? The mentality of this legislation shows up the Labour Government members for the “peacenik” lefties they are stuck in the time warp of the 1970s. A lot of us also marched against the Vietnam War but we grew up. We got real. We realised that we do not live in a benign environment and that if people want to have peace they should prepare for war. Where will it end? Will we be passing domestic laws that prohibit private security guards—the people we pay to protect our homes and property because this Government has let the police force down so badly that they can no longer do the job that our taxes pay them to do? This legislation will have the effect of downgrading the armed forces. 
Hon Judith Tizard 
: Rubbish! 
DEBORAH CODDINGTON 
: The Minister says “Rubbish!”. If members look at the definition of a mercenary they will see that a mercenary is defined as someone who is paid compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party. This is eliminating competition. What incentive is there on any State—take New Zealand—to improve the pay of its armed forces if there is not the risk that they will be lured away by a private contractor who can pay them substantially more? What does the Minister think? Does she think that people should just go to someone like Pol Pot and negotiate? Does she think they should just sit down at a little meeting? What is wrong with someone being recruited to overthrow a Government or undermine the constitutional order of a State when we are dealing with evil like Pol Pot? Does the Labour Party think we should just sit down and have a meeting with them hold hands and have a little chat and send in the peacekeeping forces? 
Hon Judith Tizard 
: Yes that is what happened with Pol Pot. 
DEBORAH CODDINGTON 
: I suppose the Minister thinks it is funny that six million people died under that regime—people like that Minister. People were killed just for wearing glasses or being able to read. That is what earned one a death under that regime. 
 We go on and on ratifying conventions because the leaders of that Government love swanning around the world and being photographed as they sign us up to these international conventions—conventions and treaties that our traditional allies will not go near and will not have a bar of. But New Zealand decides to sign up to them. What happens when we sign up to them? Absolutely nothing! We sign up to international laws and pass our own laws to ratify them including laws allowing us to prosecute child sex offenders overseas. Since 1999 have we prosecuted one of those people? No. Have we despite the matter being brought to the Government’s notice even chased any New Zealand sex offenders who have disappeared overseas jumped bail or absconded from charges? No. 
Hon Judith Tizard 
: Yes. 
DEBORAH CODDINGTON 
: The Minister should read the replies to my parliamentary questions to see what the exact situation is. Nothing has been done. It is all window dressing. The Labour Government thinks that signing up makes New Zealand look good and enables us to get a place in the UN—that talkfest that huge bureaucracy. It is a shameful situation here. All patriotic New Zealanders who believe in the protection of the State believe a country has a role to protect its own citizens and believe what is in their own hearts should have the right if they see something bad going on in another country to go there and do something about it even if they do get material gain from doing so. So what if they get material gain from doing so! What is wrong with that? This is just a disgrace. 
JUDITH COLLINS (National—Clevedon) 
: 
 I want to return to the issue of Mr Ron Mark—or as he was Major Mark—in terms of the definition of “mercenary”. I cannot understand why the Government wants to outlaw someone with Mr Mark’s skills from being able to be recruited through the British Government to go and assist the Sultan of Oman in a military-like capacity. What is wrong with that? 
We in the National Party do not want to see private armies around and clearly as a centre-right Government we would not at all condone that. But this legislation goes too far. Dr Mapp has prepared an amendment to this particular provision that would make it plain that Mr Mark’s situation would not be covered by this bill. I ask the Minister in the chair Judith Tizard to look at his amendment. It is a sensible one and it would go a long way towards helping this bill make some real sense. Dr Mapp’s amendment proposes to amend clause 5(2) by adding new paragraph (c) which states: “Within the meaning of subsection (1)(a) if he or she is employed directly within the armed forces of a party to the armed conflict whether or not they are paid more than any other persons of similar rank or specialty.” So that says that if a person is part of the army of a particular country—whether it is Oman Azerbaijan or whatever—he or she will be protected from this legislation. 
We know that this legislation after many years of sitting where it should be—which is in somebody’s filing cabinet—has come about solely because some New Zealanders have had the courage of their convictions and have acknowledged that because of their specialist skills they can go and work in Iraq to help it in its liberation and rebuilding. They say: “I can do that and I can make some money. Good on me!” and they have done that. And that is what this is all about—the Prime Minister has been on television telling those people that they should not do that. Of course if they are actually going to be earning money they do not want to have it all taken off them by the dreadful tax rates we have here. [ 
Interruption 
] That is what this is all about. 
Tomorrow I will visit our SAS troops who will be thrilled to know what this Government thinks of them— 
Dr Wayne Mapp 
: Because many of them want to do a job. 
JUDITH COLLINS 
: Exactly. Many of those SAS troops would like to know that at some stage they can go off with their specialist skills and assist in this way. There are not very many jobs out there for people who happen to have certain specialist skills in this area. There are not an awful lot of those jobs in the legitimate workforce in New Zealand. The fact is that we say to those people at age 50 55 or whatever that we do not really value their skills any more and I think that those people are as specialists entitled to use their skills to train others and to be involved in places where they are needed—and good on them. 
We should be proud of the fact that they have skills and that they are sought after. We are not talking about private armies. We are not talking about people who go into other countries and rape and pillage and kill indiscriminately; we are talking about the people—and Mr Mark is representative of them—who use their skills particularly in a legitimate way and are rightly proud of their service and I say good on Mr Mark for doing so. 
This Government is not only soft on crime it is soft on defence. It is tying us up with little-known countries most of which did not exist 20 years ago. We are being aligned with them. We no longer have allies. We have some friends. What we are doing now is aligning ourselves with countries that by and large are not ones we would ever want to be aligned with in a crisis. We would never want to have to stand up and say: “OK New Zealand armies are coming to attack us but don’t worry we have Azerbaijan coming to help us.” 
MOANA MACKEY (Labour) 
: 
 I move  
That the question be now put 
. 
RON MARK (NZ First) 
: 
 First I want to give a bouquet to the Minister in the chair Judith Tizard because she has taken a call and attempted to answer some of the questions put to her which is a little unusual in the Committee of the whole House and I appreciate that. 
I have again gone through article 1 of the Convention against the Recruitment Use Financing and Training of Mercenaries on which the definition is based. I can deal with this blow-by-blow. Article 1.1(a) provides that a mercenary is a person who: “Is specially recruited locally or abroad in order to fight in an armed conflict;”— 
Hon Judith Tizard 
: And read on. 
RON MARK 
: I will come to each one in turn. I note with interest that countries that have signed up to this convention such as Qatar Saudi Arabia Italy and Libya are countries that have employed and still do employ mercenaries. 
A good friend of mine was second in command of a Baluchistani mercenary battalion on the border of Oman and opposing him across that border were Pakistani mercenaries—in Saudi Arabia. So straight away I would question the commitment of one of the signatories to the convention—a convention that New Zealand has signed up to. As for Qatar and Libya well everybody knows that Libya not only employs mercenaries but also dispatches them. It is an absolute nonsense. 
How does one get around this provision that refers to people who are “specially recruited locally in order to fight in an armed conflict”? It is by getting recruited into a command appointment where one does not have to physically personally fight; rather one commands a battalion and simply issues the orders and instructions. In a court of law I could argue that I was not there fighting; I was simply administering resources. That is my argument. 
When I was in the Middle East one of my jobs was to go to India and Pakistan to specifically recruit former defence force personnel from those countries to take them back to the Middle East. I was looking for people with specific trades and technical skills but alongside me were my colleagues who were going to recruit people like Gurkhas. We needed Gurkhas in our unit to provide specialist security tasks that were mainly oriented towards looking after us just in case things got very awkward with our local Arab friends. That was one of the things one had to do. 
Those people were employed on a normal day-to-day basis. They did base security and personal security and they never ever had to engage in combat. But they were there to do so should they be called upon. 
Sitting suspended from 1 p.m. to 2 p.m. 
RON MARK 
: Before we lifted for lunch I was referring to the definition of “mercenary” which is based on article 1 of the convention and particularly article 1.1(a). 
I now move to article 1.1(b) which provides that a mercenary: “Is motivated to take part in the hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflict material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;”. The reality is that even an Indian soldier recruited to serve in the Omani army would be paid more than many of the people alongside him. 
Stephen Franks 
: Especially if they are conscripts. 
RON MARK 
: Yes especially if they are conscripts. The idea and notion that a professional officer of the New Zealand Army or Air Force or the British army or air force would go all the way over to Saudi Arabia Oman or Iraq to help rebuild a nation and do it for nothing or for the same wages that the locals would be paid is a nonsense. The very reason that person would be asked to accept a contract to go over there to work for those armies is that person has professional skills of a very high standard that those armies want and they know that they have to pay to get the skills. The men or women are setting themselves up to leave their homes families and children back here in New Zealand and they will not do that for peanuts. To make them mercenaries by this definition is wrong and it is not helpful. At the end of the day other ways exist to deal with those unsavoury characters of the ilk that the Government is quite legitimately trying to deal with. The ways around this also exist. 
I go to article 1.1(c) which provides that a mercenary: “Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;”. Can anyone answer me this question? Of all those expatriates who went into Afghanistan to fight the Soviets and help the mujahideen—because it was a sensible thing to do in those days—none of them were nationals of parties to the conflict but they did us a service. 
SIMON POWER (National—Rangitikei) 
: 
 Part 1 raises very quickly the heart of the opposition to this Mercenary Activities (Prohibition) Bill. Nobody on this side of the Chamber wishes to condone mercenary activity in any way shape or form but this bill creates a whole lot of uncertainty around the definition of mercenary. During the second reading I said that the most extraordinary thing about the way this legislation has been put together is that when members look at clause 5 where mercenary is defined they will see that the definition of what is not a mercenary is larger than the definition of what is. 
Hon Judith Tizard 
: Why is that surprising? 
SIMON POWER 
: It is surprising because it is very bad law when the definition of mercenary is unable to capture the essence of the legislation in a way that secures certainty for those interpreting it. I say to the Minister that it matters because the only way this legislation can be clarified is to include an extensive definition of what is not a mercenary. If that principle were applied to all the interpretation sections of all the bills that went through Parliament one can imagine the chaos that would ensue in interpreting law. It is not good enough to have a definition at the crux of the legislation that has to be corrected and clarified by defining further on in the interpretation section what a mercenary is not. 
For example if we were to use a parallel piece of legislation around—to pluck a subject out of the air—Auckland roading we would then find ourselves on this principle defining what is not a road instead of what is a road to make sure the definition of a road is clear. That is an entirely unsatisfactory way for this House to pass legislation. It is evidence of the fact that in the end the Foreign Affairs Defence and Trade Committee and the Government were unsure about the meaning of mercenary and how to define the concept of a mercenary and were convinced I believe by the number of concerns that were raised during the select committee process that their definition of mercenary as presented was nowhere near good enough. 
The only way to fix that obviously—using the collective wisdom of the select committee the Government and the officials—was to tell the world what a mercenary is not. That is wholly unsatisfactory when it comes to interpreting law wholly unsatisfactory when it comes to applying law and wholly unsatisfactory if one happens to be a mercenary. Mercenaries now find themselves in a position whereby not only do they have to not satisfy one test but they have to also satisfy the other test to ensure they are not captured by this legislation. 
This is sloppy legislation. This is a sloppy definition and we on this side of the Chamber say that the Government should do a better job of defining what evil or wrongdoing it wishes to capture as opposed simply to defining what it is not in order to capture that perceived wrongdoing. 
The UN itself has had difficulty with this concept. It has had a series of reports presented to it that state: “This is really hard and we don’t know how to define what a mercenary is. We accept that the current arrangements are unsatisfactory.” So how does the New Zealand Parliament resolve that? It says: “It’s all a bit tricky so we will say what a mercenary is not.” That is totally unacceptable. 
Debate interrupted.