Visiting Forces Bill – Second Reading

The Green Party is supporting this bill, which deals with practical matters of how visiting forces to our country, or our forces going to other countries, conduct their affairs, and have a degree of autonomy. It introduces certain cautions into arrangements made in that we do not want injustices done to those who are members of the visiting force, or injustice done to New Zealanders or their property if that is affected by activities of members of the visiting force.

I think the way this bill is constructed is good. It is a base document upon which other status of forces agreements are constructed. In the base document most of the jurisdiction goes back to our country rather than it being delegated to the visiting force, except when there are issues between members of the visiting force that do not affect the people or property of New Zealand.

The Minister, in his speech, talked about recognising what he called the sovereign immunity of the visiting force. I think that, while we accept that sovereign immunity, it does not mean that a country such as New Zealand can wash its hands of injustices if they occur in terms of the processes of the visiting force. It is more a question of how those injustices are handled, and as the Minister said, those injustices are not handled so much by reference to a New Zealand court, or a New Zealand court superseding the internal proceedings of the visiting force, but more in terms of negotiations between the New Zealand Government and the visiting force, if we see that problems have arisen.

As the Foreign Affairs, Defence and Trade Committee, of which I am a member of, said in its report, in an extreme case the Government could insist that the sending State withdraw its forces from New Zealand. I want to go into what problems could possibly arise in this respect. I can see about three of them.

One is in terms of the penalty imposed by the visiting force against one of its members. There is a particular provision — an aspect of penalty — in the bill under clause 9(1) where it states: “The service authorities of a visiting force must not — (a) impose, or carry out, a sentence of death in New Zealand”. I think that is very important because we as a country are very much against the death penalty.

There could be a little problem there though, or it could be quite a big problem for the person concerned, in that while that provision prevents a sentence of death being imposed on the said offender in New Zealand, that person could be whipped off back to China, or some country such as that, and be subject to the death penalty there. That is something that we would have to watch very clearly, and it could result in terminating that relationship with the visiting force. I think that would be a severe breach. Then there could be other problems, and I mention China and Singapore. Some of those countries have very harsh penalties, and we would have to see whether they were being imposed in a way that we would object to, and whether they were offences effectively committed on our territory.

The second problem could be a due process problem. As I said, the bill envisages that one cannot appeal to a New Zealand court if it is a question of issues within the visiting force. But we do have, again, countries such as China that do not have particularly good due process. The Singaporean Government often does not process people through courts, but has an Internal Security Act. There are a lot of people languishing in its goals who have never been brought before a court. They have been there for years under the Internal Security Act. Many of the people arrested in the so-called war against terrorism — actually, all of them, I think — who were detained up to about 3 or more years ago are sitting in jail. None of them have been processed for supposed terrorist charges. So there is a problem of due process in terms of visiting forces, one of which could apply to the Singapore military force that has sometimes come to New Zealand as a visiting force for short periods of training, in Waiouru etc.

The third problem that I can see is the possible mistreatment of those charged and detained in the visiting force while in New Zealand. A specific provision in the bill relates to an aspect of that. Clause 9(1)(b) states that the authorities of a visiting force must not “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.” That, unfortunately, has a certain relevance right at this moment with the exposure of the systemic problems of, in effect, torture and abuse of people by American and British forces in Iraq, be that verbal abuse, humiliation, stripping, beatings, etc. We would have to make sure that any visiting force from, say, the United States or Britain, did not bring those practices to New Zealand in terms how they treat their serving people. We would have to make sure they applied the proper provisions and did not descend into what could be seen as torture in their relationships.

As well as what seems to be happening in Iraq today with the revenge type of approach in beating up prisoners, etc., there seems to be a whole strategy — originating from US military intelligence in particular but also including British military intelligence which has been involved in some of the interrogations at the Abu Ghraib prison — of how to get people to talk. The way one gets people to talk is to abuse them seriously — in effect, to torture them by depriving them of sleep, humiliating them, and reducing their resistance in that manner, or making them live in fear through beatings. That problem could apply to a visiting force. Where such problems exist they should be dealt with by negotiation. If the problems were serious, we might have to suspend the military relationship whereby a particular visiting force comes to this country.

Of course, the bill contains a provision that the New Zealand Bill of Rights Act applies to any New Zealander who is affected by a relationship with a visiting force. No New Zealander, who may be a contract worker, or whatever, for a visiting force would escape the jurisdiction of our New Zealand Bill of Rights Act and our due process.

One other little problem that the bill does not really mention can be a big problem for certain people. It has applied, I think, to the longstanding visiting American force in Christchurch, and involves situations whereby New Zealand women become pregnant to members of a visiting force and paternity suits and things like that ensue. Such cases are covered only under civil law, and there have been some complaints in terms of pursuing civil cases against former members of the visiting force back into the United States. The bill does not specifically cover that situation, but it is something to bear in mind when we deal with this general problem of visiting forces.