Mercenary Activities (Prohibition) Act 2004

1: Title
This Act is the Mercenary Activities (Prohibition) Act 2004.
1: Preliminary provisions
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) brought into force 22 October 2004 Mercenary Activities (Prohibition) Act Commencement Order 2004 Section 2(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
3: Purpose
The purpose of this Act is to implement in New Zealand law New Zealand’s obligations under the Mercenaries Convention.
4: Interpretation
1: In this Act, unless the context otherwise requires,— concerted act of violence
a: overthrow a government or otherwise undermine the constitutional order of a State; or
b: undermine the territorial integrity of a State Mercenaries Convention Schedule mercenary section 5(1)
2: For the purposes of this Act, a person must be treated as being ordinarily resident
a: the person’s home is in the State; or
b: the person is residing in the State with the intention of residing there indefinitely; or
c: having resided in the State with the intention of establishing his or her home in the State indefinitely, the person is outside the State but has an intention to return to establish his or her home in the State or to reside in the State indefinitely.
5: Mercenary defined
1: In this Act, unless the context otherwise requires, mercenary
a: any person—
i: who is recruited, within New Zealand or elsewhere, in order to take part in hostilities in an armed conflict; and
ii: whose purpose, or one of whose purposes, in taking part in hostilities in the armed conflict is making private gain; and
iii: who is 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 in the armed forces of that party; or
b: any person, other than a person referred to in paragraph (a),—
i: who is recruited, within New Zealand or elsewhere, in order to take part in a concerted act of violence; and
ii: whose purpose, or one of whose purposes, in taking part in the concerted act of violence is making significant private gain; and
iii: who is promised or paid material compensation.
2: A person is not a mercenary—
a: within the meaning of subsection (1)﻿(a) if he or she is—
i: a citizen of a party to the armed conflict or ordinarily resident in territory controlled by a party to the armed conflict; or
ii: a member of the armed forces of a party to the armed conflict; or
iii: sent by a State that is not a party to the armed conflict on official duty as a member of its armed forces:
b: within the meaning of subsection (1)﻿(b) if he or she is—
i: a citizen of, or ordinarily resident in, the State against which the concerted act of violence is directed; or
ii: sent by a State on official duty; or
iii: a member of the armed forces of the State on whose territory the concerted act of violence is undertaken.
3: A person is not a mercenary within the meaning of subsection (1)﻿(a) or subsection (1)﻿(b) if he or she is taking part in—
a: a peace support mission—
i: for any of the purposes of the United Nations; or
ii: that is undertaken in accordance with the principles of the Charter of the United Nations; or
b: the detection, clearance, deactivation, or destruction of mines or unexploded ordnance, other than in a combat role; or
c: the delivery of humanitarian aid; or
d: domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property.
4: Subsections (2) and (3) do not limit the circumstances in which a person is not a mercenary.
6: Act binds the Crown
This Act binds the Crown.
2: Mercenary activities
Recruiting, using, financing, and training of mercenary
7: Recruiting person to be mercenary
1: Every person commits an offence, and is liable on conviction
a: with the intention that the person being recruited make private gain from taking part in hostilities in the armed conflict; and
b: knowing that the person being recruited has been or is being promised 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 in the armed forces of that party.
2: Subsection (1) does not apply if the person being recruited—
a: is a citizen of a party to the armed conflict or ordinarily resident in territory controlled by a party to the armed conflict; or
b: is, or once recruited will be, a member of the armed forces of a party to the armed conflict; or
c: will be sent by a State that is not a party to the armed conflict on official duty as a member of its armed forces.
3: Every person commits an offence, and is liable on conviction
a: with the intention that the person being recruited make significant private gain from taking part in the concerted act of violence; and
b: knowing that the person being recruited has been or is being promised material compensation to take part in the concerted act of violence.
4: Subsection (3) does not apply if the person being recruited—
a: is a citizen of, or ordinarily resident in, the State against which the concerted act of violence is or will be directed; or
b: will be sent by a State on the official duty of that State; or
c: is, or once recruited will be, a member of the armed forces of the State on whose territory the concerted act of violence is undertaken. Section 7(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 7(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
8: Using mercenary
Every person commits an offence, and is liable on conviction
a: knowing that a person is a mercenary of the kind described in section 5(1)﻿(a)
b: knowing that a person is a mercenary of the kind described in section 5(1)﻿(b) Section 8 amended 1 July 2013 section 413 Criminal Procedure Act 2011
9: Financing mercenary
1: Every person commits an offence, and is liable on conviction
a: to enable a person who is a mercenary of the kind described in section 5(1)﻿(a)
b: to enable a person who is a mercenary of the kind described in section 5(1)﻿(b)
2: In subsection (1), funds
a: means assets of every kind, whether tangible or intangible, moveable or immoveable, however acquired; and
b: includes legal documents or instruments (for example, bank credits, travellers’ cheques, bank cheques, money orders, shares, securities, bonds, drafts, and letters of credit) in any form (for example, in electronic or digital form) evidencing title to, or an interest in, assets of any kind.
3: In a prosecution for financing a mercenary, it is not necessary for the prosecutor to prove that the funds provided were actually used, in full or in part, to enable a mercenary to take part in hostilities in an armed conflict or take part in a concerted act of violence. Section 9(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011
10: Training prospective mercenary
1: Every person commits an offence, and is liable on conviction
a: with the intention that the person being trained be recruited as a mercenary of the kind described in section 5(1)﻿(a)
b: knowing that the person being trained is likely to be recruited as a mercenary of the kind described in section 5(1)﻿(a)
2: Every person commits an offence, and is liable on conviction
a: with the intention that the person being trained be recruited as a mercenary of the kind described in section 5(1)﻿(b)
b: knowing that the person being trained is likely to be recruited as a mercenary of the kind described in section 5(1)﻿(b) Section 10(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 10(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
11: Training mercenary
Every person commits an offence, and is liable on conviction
a: knowing that a person is a mercenary of the kind described in section 5(1)﻿(a)
b: knowing that a person is a mercenary of the kind described in section 5(1)﻿(b) Section 11 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Mercenary taking part in hostilities or concerted act of violence
12: Mercenary taking part in hostilities or concerted act of violence
1: Every person commits an offence, and is liable on conviction section 5(1)﻿(a)
2: Every person commits an offence, and is liable on conviction section 5(1)﻿(b) Section 12(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 12(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Extraterritorial jurisdiction
13: Extraterritorial jurisdiction
1: Even if the acts or omissions alleged to constitute an offence occurred wholly outside New Zealand, proceedings may be brought for an offence under any of sections 7 to 12
a: if the person to be charged—
i: is a New Zealand citizen; or
ii: is ordinarily resident in New Zealand; or
iii: has been found in New Zealand and has not been extradited; or
iv: is a body corporate, or a corporation sole, incorporated under the law of New Zealand; or
b: if any of the acts or omissions is alleged to have occurred on board—
i: a ship registered, or required to be registered, under the Ship Registration Act 1992
ii: a ship used as a ship of the New Zealand Defence Force; or
iii: an aircraft registered, or required to be registered, in New Zealand under the Civil Aviation Act 1990
iv: an aircraft for the time being used as an aircraft of the New Zealand Defence Force; or
v: an aircraft that is leased to a lessee whose principal place of business is in New Zealand, or who is a New Zealand citizen or a person ordinarily resident in New Zealand; or
c: if a person in respect of whom the offence is alleged to have been committed—
i: is a New Zealand citizen; or
ii: is ordinarily resident in New Zealand.
2: The following sections do not apply in respect of an offence under any of sections 7 to 12
a: section 8
b: section 400
3: Nothing in this section limits the application of any of sections 7 to 12
a: acts or omissions that occurred wholly in New Zealand; or
b: the application of section 7
i: an act or omission forming part of an offence; or
ii: an event necessary to the completion of an offence; or
c: the application of section 8A
3: Miscellaneous provisions
Evidence that States are, or are not, Parties to Mercenaries Convention
14: Certificate as to States Parties under Mercenaries Convention
A certificate that appears to be signed by, or on behalf of, the Secretary of Foreign Affairs and Trade and that states that a State is, or is not, a State Party to the Mercenaries Convention is sufficient evidence of that matter, unless the contrary is proved. Investigation and prosecution of offences against Act or referred to in Mercenaries Convention
15: Application of sections 16 and 17
1: Sections 16 17 article 2 article 3 article 4
2: In sections 16 17 relevant States Parties
a: State Party where the offence was committed; and
b: State Party in relation to which the offence was directed or attempted; and
c: State Party in relation to which any person against whom the offence was directed or attempted is a person of the kind referred to in article 10(2)﻿(c)
d: State Party—
i: in relation to which the alleged offender is a citizen; or
ii: in whose territory the alleged offender habitually resides, if the alleged offender is not a citizen of any State; and
e: other interested States Parties the Attorney-General considers it appropriate to notify.
16: Attorney-General to notify relevant States Parties of measures taken to ensure person’s presence
The Attorney-General must immediately notify the relevant States Parties, either directly or through the Secretary-General of the United Nations, if, as a result of receiving the information,—
a: a person is taken into custody in accordance with New Zealand law; or
b: other measures are taken under New Zealand law to ensure a person’s presence for the purposes of the institution of criminal or extradition proceedings (being the measures contemplated by article 10(1)
17: Attorney-General to indicate to relevant States Parties whether New Zealand to exercise jurisdiction
When a preliminary inquiry has been undertaken under New Zealand law of the facts contained in the information (being a preliminary inquiry contemplated by article 10(1)
a: report the findings of the inquiry to the relevant States Parties; and
b: indicate to the relevant States Parties whether New Zealand intends to exercise jurisdiction.
18: Rights of certain persons taken into custody to communicate with representative of State
1: This section applies to a person who is taken into custody in New Zealand as part of the measures referred to in section 16
a: a New Zealand citizen; nor
b: a person who is ordinarily resident in New Zealand but who is not a citizen of any State.
2: Promptly after being taken into custody, a person must be informed that he or she is entitled, and must be permitted,—
a: to communicate without delay with the nearest appropriate representative of the relevant State; and
b: to be visited by a representative of the relevant State.
3: In subsection (2), relevant State
a: the State in relation to which the person is a citizen; or
b: the State that is otherwise entitled to protect the person’s rights; or
c: if the person is not a citizen of any State, the State in whose territory the person ordinarily resides.
4: Nothing in this section affects any other rights of a person to whom this section applies.
19: Attorney-General’s consent to prosecutions required
1: No proceedings for an offence against this Act may be instituted in any court except with the consent of the Attorney-General.
2: However, a person alleged to have committed an offence against this Act may be arrested, or a warrant for the person’s arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the Attorney-General’s consent under subsection (1) has not been obtained.
20: Attorney-General to communicate outcome of prosecution
If a person is prosecuted for an offence under this Act, the Attorney-General must communicate the final outcome of the proceedings promptly to the Secretary-General of the United Nations, so that he or she may transmit the information to other States Parties to the Mercenaries Convention. Extradition
21: Offences deemed to be included in extradition treaties
1: For the purposes of the Extradition Act 1999 section 15 section 104 sections 7 to 12
2: If, under subsection (1), an offence is deemed to be an offence described in an extradition treaty, no person may be surrendered for the offence in accordance with the Extradition Act 1999
3: In this section, relevant date Amendment to Extradition Act 1999
22: Amendment to Extradition Act 1999
Amendment(s) incorporated in the Act(s) Amendment to Mutual Assistance in Criminal Matters Act 1992
23: Schedule of Mutual Assistance in Criminal Matters Act 1992 amended to refer to Mercenaries Convention
Amendment(s) incorporated in the Act(s)