Mapp Wayne: Armed Forces Law Reform Bill — In CommitteeText is incorporated into the Bound VolumeMapp Wayne: Armed Forces Law Reform Bill — In Committee[Sitting date: 10 October 2007. Volume:642;Page:12254. Text is incorporated into the Bound Volume.]Dr WAYNE MAPP (National—North Shore): This part relates to courts martial appeals. One of the important changes in this legislation which I think has been very well done is to change the very nature of courts martial. It is also referred to in Parts 4 and 5 and we will speak on it briefly at that point as well. Essentially the change is to shift a court martial from the traditional approach whereby the “judge” was merely acting in the role of an adviser and the presiding officer was a senior military officer. The new approach which I think is a much better approach is to have the judge acting as the presiding officer. I think that is very important.This is a legal process. It is very formally constituted. It is not rushed; it is not done under the stress and heat of battle or in operational circumstances. These things are done in a formal and considered way and therefore we expect the full proprieties around the legal observance of rights and duties and the rights of the accused to be properly protected. We know from deep experience extending over literally centuries that there is right way to do that: by having an independent judge and then in a sense by having a jury of the accused person’s peers to determine the finding on the facts. We will have as the presiding officer a judge from the Judge Advocates General all of whom are District Court judges or indeed High Court judges at the appellate level. Then we will have commissioned officers and senior non-commissioned officers acting as the board—or as the jury to use that analogy. It is not a perfect analogy but it is robust enough to enable us to see the importance of the change.I think this is a very important change. A court martial deals with serious offences. Many of those offences are also breaches of the civil law. Without going into the details of any particular trial there was a whole series of cases in the navy in particular several years ago relating to sexual harassment and the like that were very difficult for the navy to deal with and they were also very difficult for the court martial process to deal with. I think this new procedure will be much fairer both for the accused and for the complainant. In that situation the offence was not so much against service discipline but actually against particular fellow service people—mostly women obviously—so the complainant has rights and expectations as well as the accused. There has been a careful balancing of that and a new structuring of both the appellate system and under Part 5 the new court martial procedure.In legislative terms we have essentially borrowed the approach of the United Kingdom Canada and Australia but in principle terms we have really dug deep into the civil system. That is the real reference point as it was for those other Commonwealth jurisdictions. I believe this is a very important and significant change. It will be one that I think will give people in the defence forces a great deal more confidence in the process whether they find themselves in the role of the accused or the complainant or for that matter whether the service itself is the complainant. This is an important change.We heard some very very good submissions from the Judge Advocates General on these points all of whom are highly experienced people with roles as defence counsel as civil prosecutors or indeed as judges. I think that the legal services directorate has put a great deal of work into getting this part right. Members will note that this was not an area that we needed to change very much at all. In fact to be fair we did not have to change much of the bill but we did focus on some important parts. I commend the directorate for stepping back getting a much better system and gaining the confidence of people from other parts of the services who I suspect might have been a little wary of the new approach. I am sure that it was hard work to convince them that this procedure was a necessary thing but I commend the director of the legal service for achieving this outcome.National is pleased to support these new changes.Sitting suspended from 6 p.m. to 7.30 p.m.Dr WAYNE MAPP: I was taking the opportunity to talk about Part 2 which is on courts martial appeals and I was setting out why in this whole area of courts martial we have made important changes. I think these changes are fundamentally for the good because they provide a much fairer procedure and I think they will be transparently seen as providing a much fairer procedure by both the accused and the complainant whether that be effectively an individual complainant within the defence forces or if it is a broader offence against service discipline then the service itself. There is an important balancing of rights.As the Minister noted members of the Foreign Affairs Defence and Trade Committee—perhaps more particularly those from the National Party—have taken a bit of an opportunity to talk about broader issues around foreign affairs policy and bipartisanship and I guess one would say that the Minister joined robustly in that kind of debate. I know that strictly speaking we are meant to stick to the part of the bill that is being debated but the truth is that we get very few opportunities in the House to discuss these things. In fact one of the recommendations made several years ago by the select committee was that there ought to be an annual 3-hour debate in the House on foreign affairs matters so that those issues could be properly discussed.Darren Hughes: We would welcome that.Dr WAYNE MAPP: I am very pleased to hear that the Labour junior whip welcomes that.I will take a minute or so just to set out a little more detail on how National arrived at the paper that it distributed last week. It has had a long gestation.Darren Hughes: It will take only 1 minute.Dr WAYNE MAPP: I just inform the member who was probably about 10 at the time when the Cold War ended in 1990 that that really is the genesis of the changes around foreign policy in New Zealand. The period 1984-90 was a difficult period for New Zealand; Labour members well know that. But after the end of the Cold War we had a new opportunity to look at these things again. In particular we had the issues of the deployment to Bosnia the ageing of defence equipment and the defence beyond 2000 investigation in the select committee from 1996-99 very much encouraged by the Hon Paul East and undertaken very much by Derek Quigley and myself. That I think laid the groundwork. The other crucial element was September 11 which I think was really a wake-up call in particular for Labour which realised—The CHAIRPERSON (Ann Hartley): The member needs to come to the bill.Dr WAYNE MAPP: I will be coming back to the bill because it does—and this is important—talk about bipartisanship. This is a bipartisan bill. I am sure that you Madam Chairperson will indulge me for another 30 seconds when my speech will be over. Essentially there has been a convergence. Both sides had to shift and that is actually the strength of bipartisanship. Both sides recognise the interests of the other side and incorporate them in their thinking. I think other nations have started to see those values and those strengths.I return now to courts martial appeals and I might just conclude on this point. New Zealand Defence Force personnel are incredibly well trusted. One of the reasons they are trusted is the fairness and the openness of our disciplinary procedures. When we are deployed internationally—Madam Chair?The CHAIRPERSON (Ann Hartley): The member is going to stick to the bill?Dr WAYNE MAPP: Yes I am. One of the important values when one is deployed internationally is that it is not just justice within the particular defence force that is important—it is obviously important to the individuals within that defence force—but it is actually hugely important for the people with whom one is deployed. They have to have confidence that the disciplinary procedures in place will ensure that if there are transgressions by members of the defence force or I guess by civilian contractors—and all defence forces use those I might add these days—there is a robust justice system that they can rely on to hold people to account.I note that the directorate of legal services is especially mindful of that in places like East Timor Bougainville and the Solomons. Part of the confidence building amongst the people with whom we are deployed—which I must say the New Zealand Defence Force truly excels at—is knowing that if there are transgressions within our own Defence Force we have a high-quality legal procedure that brings people to justice. It is an interest process. In a sense it works in two ways does it not? Those people have to know that transgressors will be brought to justice. They then have to see that the justice system that we apply is actually fair—not just fair to them but also fair to the accused because part of what we are doing part of the role of peacekeeping is inculcating the values of fairness and justice and those values need to be seen primarily in the justice system that we ourselves apply. It needs to be seen that there are no issues of favouritism no issues of bias and no issues of the offender knowing he or she will possibly get an easy ride for the sake of service unity or something of that nature. There has to be sufficient independence in the system for it to speak to people in the places where we are deployed that we have a fair system which is fair for everyone concerned.This bill is part and parcel of modern contemporary operations. Right from the summary proceedings through to the courts martial and through to the courts martial appeals system we are building into the system that sense of fairness. And fairness is essentially built by having an independent judiciary. The old court martial system and the appeal system related to it was always subject to the criticism that it was overly influenced by issues of command and did not take into enough account issues of judicial independence. The new system essentially rectifies those defects. We now have a system at the level of courts martial and courts martial appeals that is transparently independent. The judicial officers are independent from the military chain of command. The director of legal services who is present in the Chamber as we speak is in fact accountable in his legal capacity not his command capacity to the Solicitor-General and that is actually part of the strength of this new system.I want to close on this point. I do congratulate the defence forces and in particular the director of legal services—but also actually the superior command system—who could see the importance and value of this new system in building the approach that now is so integral to the quality of the defence forces that New Zealand provides. We are best at providing high-quality focused contributions and they are built very much around specialised patrol and surveillance. They are built around the special forces. I just want to share this point. In Afghanistan our special forces expressed their own concerns about the way the people whom they were capturing in the field were being treated. I think it is a tremendously important attribute of our defence forces that they have placed justice at the centre of the whole way they conduct business.