Crimes and Misconduct (Overseas Operations) Bill

I rise on behalf of the Green Party to support this bill and its purpose. It was motivated by the commitment to the Solomon Islands. Because of the situation of lawlessness there, we had to cover the police and the civilian personnel who went there, so that if they committed crimes, they could not commit them with impunity.

There is a very good purpose behind the bill — to make sure that anyone on an overseas operation, be it Defence Force personnel, police, or civilians, is subject to proper justice. Often there are situations of concurrent jurisdiction in overseas operations, as the commentary to the bill mentions, where offences are committed against citizens of the host country or where the personnel are in an off-duty situation.

There are three categories of situation. Members of the visiting force can commit offences between themselves — in the Solomon Islands, the New Zealand visiting force. If offences are committed between members of the New Zealand Defence Force in an operation such as that in the Solomons, there are procedures within that force to deal with that.

At the other end of the scale, if members of the force — or, in this case, New Zealand civilians, as well — are off duty and commit crimes, there is a general application of local legal jurisdiction.

Then in the middle there is a bit of a grey area. If members of the visiting force in the performance of their duty are in some way reckless or criminal — driving erratically, or whatever — and offend against a person or property of the local society, there is often an overlap or concurrent jurisdiction there, and it is necessary to work out whether they should be tried locally, back in their home country, or within in the institution of the visiting force.

Of course, what happens there is often the subject of a status of forces agreement, or negotiation between the parties in that grey area. Although there is talk about concurrent jurisdiction in the commentary on the bill, the emphasis has been towards the trial being by the visiting country — in that case, New Zealand — because of the state of the judicial system, the police system, etc. in the Solomon Islands.

It was a very difficult situation when New Zealanders were committed over there, and we have seen since that time that many members of the Solomon Islands police force have been dismissed or are up on charges. Government officials and Ministers have been subject to some form of dismissal or prosecution, which shows the very difficult situation that our contingent went into and the need for a fall-back situation, so that no New Zealander could get off scot-free if he or she committed what we all know to be offences and would be offences under New Zealand law.

That being said, we do not treat those sorts of situations — such as that in the Solomon Islands, and one or two others that may develop internationally — where the jurisdiction falls back to the visiting country, in this case New Zealand, as the norm, because we want to develop the capacity in the host country to be able to support its own justice system and apply its own laws. That is particularly so when its citizens or its property are affected by members of a visiting force, be it defence personnel, police, or civilians assisting in governmental capacities, etc. as is the case in the Solomon Islands.

We support that capacity building, and we do not really want to go down the track and get into the problems that the Australians have got into recently in relation to Papua New Guinea. They are trying to commit 230 members of the Australian police over there — and New Zealand will be sending some police, too, although I do not think that has taken place yet, partly because of the big dispute that has occurred between the Australian Government and the Papua New Guinea Government over criminal jurisdiction.

The Australians initially claimed full immunity for their police, and people such as the Foreign Minister of Papua New Guinea, Mr Rabbie Namaliu**, said that that was unconstitutional and undesirable and they would not accept it, so the Australians have had to move to a more limited immunity and back to a more normal situation, as the result of a two-way dialogue, where there is give and take and where jurisdiction is not totally given away by the host country.

I listened closely to the points that Richard Worth made in relation to the application of the New Zealand Bill of Rights Act, and the difficulties in relation to people who are not members of the armed forces. There are well-established systems in the armed forces, not only in the New Zealand armed forces but also in other armed forces, in terms of prosecuting people who commit crimes.

In relation to civilians, such as the civilians we have sent over to help in the Solomon Islands civil service, it is a more difficult situation. This is a generic bill that does not only apply to the Solomon Islands, and one could envisage a situation under the bill in which our civilians are not necessarily accompanied by New Zealand police officers.

If a crime is committed by a New Zealand civilian official in a Solomon Islands Government ministry, one can imagine that a New Zealand police officer who happens to be there too could do the arrest, do a bit of the evidential work, and do the beginnings of a prosecution before the person is brought back to New Zealand for trial. One can see the problems that arise when one gets into extra-territoriality. As Richard Worth indicated, there are only a couple of areas — sex offences and terrorism — where that extra-territoriality does apply.

There are good reasons for being a little bit careful about it, because clearly there are evidential problems in a situation like the Solomon Islands-particularly if the New Zealand Police were not there, which could be the case in some other commitments. How does one know exactly what is going on? Who has said what about a particular crime? The person is brought back to New Zealand and it is very hard to fully apply justice. There are difficulties in the situation, which is why it is better to have jurisdiction with the local force, even if their justice system is imperfect in many circumstances. I am not arguing here that we could have had a proper judicial system in the Solomon Islands, particularly when we first sent the force over there, but I think we have to have some assumption that the Bill of Rights applies.

Whether it needs to be written into the bill, we can argue about. The argument in the advice given to the committee, which Ron Mark mentioned, was that because the Bill of Rights is not referred to in relation to the United Nations (Police) Act* and the Armed Forces Discipline Act*, and because those procedures operate quite well legally, we do not need to have it in this bill, although one could say that the armed forces — and the United Nations internationally, as we are tied into that by that Act — do have quite substantial systems in place that do not require quite so much attention, so perhaps a reference to the Bill of Rights does not need to be put in. But when we are talking about difficult situations applying to civilians overseas, perhaps when there is no New Zealand police officer on the scene, having a reference to the Bill of Rights could be of some use.

I have not heard a full report on the work we have done through our civilian commitment in the Solomons and what work the Australians have done, in terms of building some of those institutions. I am sure a lot of the work has been very good work, in terms of developing some of the ministries back to competence and helping to train local personnel, but we have to be very careful when we intervene in a substantial way, as we have in the Solomon Islands.

In civil society, particularly in Government ministries etc., we have the ability and such a disposition to apply our own models. I would like to see an assessment of that. For instance the New Zealand government approach — which is, unfortunately, a bit different from the Green approach — is towards deregulation, privatisation, and things like that, which might not necessarily apply most effectively in the Solomon Islands. In the sort of the chaos that ensued in the Solomon Islands, the pressures to adopt an Australian or a New Zealand model may have been a little bit great. I will be interested to get an assessment of that, and an assessment of whether the traditions of the Solomon Islands, and whether the possibility of utilising their traditions, their tribal structures etc., was fully taken account of in helping to rebuild Solomon Islands society.


Third Reading, Parliament