Visiting Forces Act 2004

1: Title
This Act is the Visiting Forces Act 2004.
1: Preliminary provisions
2: Commencement
This Act comes into force on 1 July 2004.
3: Purpose
The purpose of this Act is—
a: to update and amend the law relating to visiting forces to reflect recognised international practice; and
b: to enable New Zealand to give effect to status of forces agreements concluded with other States; and
c: to repeal the Visiting Forces Act 1939
4: Interpretation
1: In this Act, unless the context otherwise requires,— applicable agreement section 23 armed forces Armed Forces of New Zealand section 2(1) associate coroner Coroners Act 2006 civilian component
a: are employed by or in the service of the visiting force; or
b: are serving with an organisation that, with the approval of the Government of New Zealand, is accompanying the visiting force; or
c: are attached to or accompanying the visiting force coroner Coroners Act 2006 dependant
a: is not a member of the visiting force or its civilian component; and
b: is neither a New Zealand citizen nor ordinarily resident in New Zealand; and
c: is accompanying a member of the visiting force or its civilian component, and—
i: is the spouse of the member; or
ii: is not married to the member, but is living together with the member in a relationship that is recognised by the visiting force (whether the person is of the same or different sex as the member); or
iii: is wholly or mainly maintained by the member; or
iv: is in the custody, care, or charge of the member; or
v: is one of the family of the member residing with the member member of a visiting force
a: means a person who, in accordance with the law of the sending State, is serving as a member of the visiting force; but
b: does not include a member of the armed forces of the sending State if—
i: the person is attached to the Armed Forces of New Zealand under section 23A
ii: New Zealand and the sending State have mutually determined, under an agreement between them, that the person is not to be regarded as a member of a visiting force Registrar section 4 sending State service authorities of a visiting force
a: means the authorities empowered by the law of the sending State to exercise powers of command, control, discipline, or administration over a visiting force, including (without limitation) any members of the force, members of its civilian component, and dependants; and
b: includes a service tribunal of a visiting force service law service tribunal of a visiting force
a: means any officer, court, or other tribunal empowered by or under the law of the sending State to investigate, try, or otherwise dispose of charges brought against persons subject to the service law of the sending State; and
b: includes—
i: a court of inquiry; and
ii: any officer, court, or other tribunal empowered by or under the law of the sending State to review the proceedings of a service tribunal visiting force
2: For the purpose of subsection (1), regulations made under section 23 1939 No 36 s 2 1950 No 54 s 2 Section 4(1) associate coroner inserted 5 April 2023 section 36 Coroners Amendment Act 2023 Section 4(1) coroner inserted 5 April 2023 section 36 Coroners Amendment Act 2023 Section 4(1) Registrar amended 15 June 2023 section 147 Births, Deaths, Marriages, and Relationships Registration Act 2021
5: Application
This Act applies in relation to any visiting force, its civilian component, and its dependants.
6: Act binds the Crown
This Act binds the Crown.
2: Visiting forces
Jurisdiction
7: Command, control, and administration
The service authorities of a visiting force may, within New Zealand, exercise and perform all the functions, duties, and powers conferred or imposed on them by the law of the sending State in relation to the following matters:
a: the command of the visiting force:
b: the control of the visiting force:
c: the administration of the visiting force. 1939 No 36 s 3(1)
8: Criminal and disciplinary jurisdiction
1: To the extent permitted by an applicable agreement, the service authorities of a visiting force may, within New Zealand, exercise over members of the visiting force, members of its civilian component, and its dependants all criminal and disciplinary jurisdiction conferred on them by the law of the sending State.
2: In the absence of an applicable agreement covering the matter, the service authorities of a visiting force have the primary right to exercise all criminal and disciplinary jurisdiction conferred on them by the law of the sending State in respect of any act or omission that—
a: is alleged to have been committed by a member of the visiting force, a member of its civilian component, or a dependant; and
b: if proved, would constitute an offence—
i: solely against the property or security of the sending State; or
ii: solely against the person or property of any other members of the visiting force, its civilian component, or dependants; or
iii: that arises out of an act or omission done in the performance of official duty.
3: In the absence of an applicable agreement covering the matter, New Zealand courts have the primary right to exercise jurisdiction in respect of any act or omission that—
a: is alleged to have been committed by a member of the visiting force, a member of its civilian component, or a dependant; and
b: is not covered by subsection (2); and
c: if proved, would constitute an offence against New Zealand law.
4: Nothing in this Act affects or limits any power conferred on the service authorities of a visiting force by the law of the sending State, being a power to—
a: arrest, identify, detain, or search a member of the visiting force, a, member of its civilian component, or a dependant; or
b: enter and search any ship, aircraft, vehicle, or premises belonging to or occupied by the visiting force or a person referred to in paragraph (a); or
c: seize or take possession of any property, article, or thing found on or in the possession of any person referred to in paragraph (a) or in or on any ship, aircraft, vehicle, or premises referred to in paragraph (b).
5: Section 99
a: are seized or taken into possession by the service authorities of a visiting force; and
b: belong to any person other than a member of the visiting force, a member of its civilian component, or a dependant.
6: This section is subject to section 9 1939 No 36 s 3(1)
9: Limits on effect of section 8
1: The service authorities of a visiting force must not —
a: impose, or carry out, a sentence of death in New Zealand; or
b: do any act in New Zealand that would, if done by a member of the Armed Forces of New Zealand, constitute an offence against the Crimes of Torture Act 1989
2: The service authorities of a visiting force must not exercise a power referred to in section 8(4)﻿(b)
3: The service authorities of a visiting force must not exercise a power referred to in section 8(4)﻿(c)
4: If subsection (2) or subsection (3) applies, the service authorities of a visiting force may request the Attorney-General to obtain the issue of a search warrant under section 59(1)
10: Criminal proceedings in New Zealand against members of visiting forces
1: Criminal proceedings may be instituted in a New Zealand court against—
a: a member of a visiting force; or
b: a member of its civilian component, or a dependant, who is subject to the service law of the sending State.
2: However, once instituted those proceedings are stayed and must not proceed except with the consent of the Attorney-General.
3: The Attorney-General must, before deciding whether or not to give consent under subsection (2), take into account the terms of any applicable agreement, and may make such inquiries as he or she thinks fit.
4: Subsection (2) does not limit or affect any power exercisable under the law of New Zealand to arrest, identify, detain, or search a member of a visiting force, a member of its civilian component, or a dependant.
5: The arrest of a member of a visiting force, a member of its civilian component, or a dependant is subject to section 11 Defence (Visiting Forces) Act 1963 ss 9, 10 (Aust) Arrest
11: Arrest of members of visiting forces
1: If a person arrests a member of a visiting force, a member of its civilian component, or a dependant, the person making the arrest (or any of the person’s superiors) must notify the service authorities of the visiting force of the arrest as soon as practicable after the arrest.
2: If a person charged with an offence against the law of New Zealand appears to the court to be a member of a visiting force, a member of its civilian component, or a dependant,—
a: the court must determine the period it considers reasonable to enable inquiries to be made for the purpose of determining the status of the person; and
b: further proceedings in respect of the offence charged are stayed for that period.
3: If a person referred to in subsection (2) has been remanded in custody by order of the court and the Attorney-General directs that the person be delivered to the custody of the service authorities of the visiting force, the court must revoke the order and order that the person be delivered to the custody of those authorities. Defence (Visiting Forces) Act 1963 s 12 (Aust) Proceedings before service tribunal of visiting force
12: Application of provisions of Armed Forces Discipline Act 1971
The following provisions of the Armed Forces Discipline Act 1971
a: section 150A
b: section 150B
c: section 150C
d: sections 150E to 150G 1939 No 36 s 3(2), 4(5) Section 12(a) substituted 1 July 2009 section 81 Armed Forces Discipline Amendment Act (No 2) 2007 Section 12(b) substituted 1 July 2009 section 81 Armed Forces Discipline Amendment Act (No 2) 2007 Section 12(c) substituted 1 July 2009 section 81 Armed Forces Discipline Amendment Act (No 2) 2007 Section 12(d) substituted 1 July 2009 section 81 Armed Forces Discipline Amendment Act (No 2) 2007
13: New Zealand courts not to try offenders for offences already disposed of
Section 21 Defence (Visiting Forces) Act 1963 s 11 (Aust) Imprisonment
14: Manner in which sentence of imprisonment or detention may be served
1: If a member of a visiting force, a member of its civilian component, or a dependant has been sentenced by a service tribunal of the visiting force to imprisonment or detention, the sentence may be served in accordance with Part 9
2: Part 9
a: the officer in command of the visiting force were a competent service authority; and
b: the prisoner were a service prisoner or service detainee (as the case may require). 1939 No 36 s 4(3) Legal proceedings before New Zealand courts
15: Proceedings of service tribunals
The following may not be called into question in any proceedings before a New Zealand court:
a: the proceedings of a service tribunal of a visiting force:
b: any sentence passed or order made by the service tribunal:
c: any investigation carried out by the service authorities of the visiting force that is relevant to the service tribunal’s proceedings:
d: the exercise, by the service authorities, of any power referred to in section 8(4) 1939 No 36 s 3(3)–(5) 1971 No 53 s 143
16: Proceedings relating to conditions of service of member of visiting force or civilian component
No proceedings in respect of the conditions of service of a member of a visiting force or a member of its civilian component may be brought in a New Zealand court. 1939 No 36 s 3(4) Application to visiting forces of laws applying to Armed Forces of New Zealand
17: Application of New Zealand laws to visiting forces
1: If an enactment exempts the Armed Forces of New Zealand from all or any of its provisions, or modifies or adapts any of its provisions so far as they apply to the Armed Forces of New Zealand, the exemption, modification, or adaptation applies in relation to a visiting force, subject to such adaptations or modifications as may be necessary.
2: If an enactment penalises misconduct by any person in relation to the Armed Forces of New Zealand or a member of the Armed Forces of New Zealand, the enactment applies in relation to a visiting force or a member of the visiting force with any necessary modifications.
3: Any person authorised to perform or exercise any function, duty, or power, in relation to the Armed Forces of New Zealand may perform or exercise that function, duty, or power in relation to a visiting force.
4: Subsection (3) does not limit any privileges or immunities enjoyed by the sending State under applicable international law.
5: Without limiting subsections (1) to (4), the Governor-General may, by Order in Council,—
a: exempt a visiting force from all or any of the provisions of any enactment; or
b: modify or adapt any of the provisions of any enactment so far as they apply to a visiting force.
6: An Order in Council made under subsection (5) may be made—
a: in relation to visiting forces generally; or
b: for the purpose of implementing any treaty, agreement, or arrangement between New Zealand and the sending State.
7: An order under subsection (5) is secondary legislation ( see Part 3 1939 No 36 s 4(1), (5), (6) 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 17(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Application of New Zealand Bill of Rights Act 1990
18: Application of New Zealand Bill of Rights Act 1990 to acts done at request or on behalf of visiting forces
1: The New Zealand Bill of Rights Act 1990 section 3
2: This section is for the avoidance of doubt. Death of members of visiting forces
19: Inquiries
1: If a responsible coroner in relation to a death is satisfied that the dead person
a: if the coroner has not opened an inquiry into the death, he or she must not open an inquiry into the death:
b: if an inquiry has been opened but is not then completed, the coroner must adjourn the inquiry.
2: As soon as practicable after becoming aware of a death to which subsection (1) applies, the Chief of Defence Force must ensure that the Attorney-General is notified of the death.
3: The Attorney-General may direct that a coroner or any other authority open or proceed with an inquest or other inquiry into a death to which subsection (1) applies. Without limiting the matters the Attorney-General may take into account in deciding whether to give such a direction, the Attorney-General must take into account—
a: the wishes of the sending State; and
b: the terms of any applicable agreement.
4: When a direction referred to in subsection (3) takes effect, the following apply:
a: the provisions of the Births, Deaths, Marriages, and Relationships Registration Act 2021 section 40(4)﻿(a)
b: the provisions of the Coroners Act 2006 section 25
5: The Births, Deaths, Marriages, and Relationships Registration Act 2021
6: If a responsible coroner in relation to a death
a: if the coroner has not opened an inquiry into the death, he or she must not open an inquiry into the death until the criminal or disciplinary proceedings against the person have been finally concluded:
b: if an inquiry inquiry
7: Subsection (6) does not prevent a coroner from—
a: taking evidence of the fact that the person has died, of the person’s identity, and of the place and date of death; or
b: providing information to a Registrar for the purpose of registering the death; or
c: authorising the release of the body.
8: In this section, responsible coroner section 9 Visiting Forces Act 1952 s 7 (UK); Defence (Visiting Forces) Act 1963 s 14 (Aust) Section 19 heading amended 1 July 2007 section 146 Coroners Act 2006 Section 19(1) amended 21 July 2016 section 75 Coroners Amendment Act 2016 Section 19(1)﻿(a) substituted 1 July 2007 section 146 Coroners Act 2006 Section 19(1)﻿(b) substituted 1 July 2007 section 146 Coroners Act 2006 Section 19(4)﻿(a) amended 15 June 2023 section 147 Births, Deaths, Marriages, and Relationships Registration Act 2021 Section 19(4)﻿(b) substituted 1 July 2007 section 146 Coroners Act 2006 Section 19(5) amended 15 June 2023 section 147 Births, Deaths, Marriages, and Relationships Registration Act 2021 Section 19(5) amended 24 January 2009 section 47 Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 Section 19(6) amended 21 July 2016 section 75 Coroners Amendment Act 2016 Section 19(6)﻿(a) substituted 1 July 2007 section 146 Coroners Act 2006 Section 19(6)﻿(b) amended 1 July 2007 section 146 Coroners Act 2006 Section 19(8) inserted 21 July 2016 section 75 Coroners Amendment Act 2016
20: Witnesses at inquest or inquiry
1: A member of a visiting force, a member of its civilian component, or a dependant is not a compellable witness for the purposes of an inquest or inquiry opened or proceeded with in accordance with section 19
2: A witness who is summoned to attend before a coroner or some other authority for the purposes of an inquest or inquiry opened or proceeded with in accordance with section 19
3: The Chief of Defence Force may give a certificate for the purpose of subsection (2) to the effect that any matter may prejudice the security or defence of New Zealand or the sending State.
4: A certificate given under subsection (3) is admissible in any proceedings in a New Zealand court and is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the certificate. Claims
21: Claims against visiting forces
1: This section applies to any cause of action that arises in New Zealand in respect of—
a: the death of or bodily injury to any person; or
b: damage to any property.
2: A person (other than a member of a visiting force, a member of its civilian component, or a dependant) is entitled to make a claim or demand against the Crown if—
a: the person suffers in New Zealand any damage, loss, or injury by, through, or in connection with the use of any ship, vehicle, aircraft, or equipment belonging to a visiting force; or
b: the person has or considers that he or she or it has a just claim or demand in respect of a cause of action to which this section applies against a member of a visiting force or a person acting for or on behalf of a visiting force.
3: The claim or demand must be one that is not barred by section 317 section 318
4: The claim or demand must be one that the person would have been entitled to make under the Crown Proceedings Act 1950
a: the ship, vehicle, or equipment had belonged to the Crown, or the aircraft had been a service aircraft, or the member or the person so acting had been a member of the Armed Forces of New Zealand; and
b: the Government of the sending State to which the visiting force belongs had been the Crown.
5: The Crown has, in relation to the person making the claim or demand, the same rights and liabilities as the Crown would have had if—
a: the ship, vehicle, or equipment belonging to the visiting force had belonged to the Crown or the aircraft belonging to the visiting force had been a service aircraft; or
b: the member of the visiting force or the person acting for or on behalf of the visiting force had been a member of the Armed Forces of New Zealand.
6: The determination of a claim or demand under this section must have regard to any payment which the person has received or is entitled to receive, whether from the Crown or from any other person or authority, in satisfaction, wholly or partly, of the claim or demand. 1950 No 54 s 10(1)–(5)
3: Miscellaneous provisions
22: Evidence
1: The Attorney-General may, after making any inquiries he or she thinks fit, give a certificate as to the status under this Act of—
a: any force, person, or property; or
b: any matter or thing for the purposes of any of sections 13 15 16 21
2: A certificate given under subsection (1) is admissible in any proceedings in a New Zealand court and is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the certificate. Defence (Visiting Forces) Act 1963 s 27 (Aust)
23: Regulations
1: The Governor-General may, by Order in Council, make regulations providing for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations under this section are secondary legislation ( see Part 3 1939 No 36 s 10 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 23(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
24: Act not in force in Tokelau
This Act is not in force in Tokelau. 1939 No 36 s 7
25: Repeals and revocations
1: The Visiting Forces Act 1939
2: The orders and regulations specified in Schedule 1
26: Consequential amendments
The Acts specified in Schedule 2
27: Saving relating to existing status of forces agreements
1: This section applies to every status of forces agreement between New Zealand and the sending State of a visiting force that had effect immediately before the commencement of this section.
2: Every status of forces agreement to which this section applies is an applicable agreement under this Act.