text:
First Session, Forty-seventh Parliament, 2002-2004 Parliamentary Debates (HANSARD) Tuesday, 29 June 2004 (continued on Thursday, 1 July 2004) WELLINGTON, NEW ZEALAND Published under the authority of the House of Representatives—2004 ISSN 0114-992 X THURSDAY, 1 JULY 2004 TABLE OF CONTENTS ELECTORAL MATTERS BILL— First Reading....................................................................................................14199 CRIMINAL PROCEDURE BILL— First Reading....................................................................................................14210 ANIMAL PRODUCTS (DAIRY PRODUCTS AND OTHER MATTERS) BILL— First Reading....................................................................................................14225 MERCENARY ACTIVITIES (PROHIBITION) BILL— Second Reading ...............................................................................................14233 Instruction to Committee .................................................................................14240 In Committee—Part 1 Preliminary provisions ............................................... 14240 VISITORS— Australia—Deputy Speaker, Parliament of Victoria ....................................... 14247 MERCENARY ACTIVITIES (PROHIBITION) BILL— In Committee— Part 1 Preliminary provisions (continued) .................................................14247 Part 2 Mercenary activities ........................................................................14250 Part 3 Miscellaneous provisions ................................................................14257 Schedule ......................................................................................................14261 Clause 1 Title .............................................................................................14262 Third Reading ..................................................................................................14264 SECONDHAND DEALERS AND PAWNBROKERS BILL— Second Reading ...............................................................................................14270 Instruction to Committee .................................................................................14275 In Committee—Clauses 1 to 78, and schedules 1 to 3 .................................... 14276 Third Reading ..................................................................................................14277 LAND TRANSPORT AMENDMENT BILL— First Reading....................................................................................................14281 29 Jun 2004 Electoral Matters Bill 14199 TUESDAY, 29 JUNE 2004 (continued on Thursday, 1 July 2004) ELECTORAL MATTERS BILL First Reading Hon RICK BARKER (Associate Minister of Justice): I move, That the Electoral Matters Bill be now read a first time. At the appropriate time I will move that the bill be referred to the Justice and Electoral Committee for consideration and that the committee present its final report on or before 1 November 2004, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, and during any evening on the day on which there has been a sitting of the House and on a Friday in a week when there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c). This bill amends provisions in section 55 of the Electoral Act relating to when a member of Parliament must vacate his or her seat. It also cures an anomaly in section 55E of the Electoral Act that could see the Governor-General or a senior judge take a role in the party-hopping procedure, which would be inappropriate to their constitutional functions. The bill also makes a number of procedural and technical amendments to the electoral broadcasting regime to allow the Electoral Commission to allocate funds effectively for electoral broadcasting for the next general election. New Zealand is a diverse, multicultural society that recognises the rights of its citizens to hold citizenship in other countries in addition to their New Zealand citizenship. In the 21st century New Zealand people with dual or multiple citizenships are becoming more and more common. There is no reason to think that the situation will be different for members of Parliament. However, MPs differ from other citizens in one vital respect. They represent the people of New Zealand, and it is essential that they demonstrate an ongoing commitment to New Zealand and the people they represent. This bill clarifies the position of MPs who wish to exercise the same rights of citizenship that are granted to other New Zealand citizens. The bill amends section 55 of the Electoral Act so that it is clear, first, that a member of the New Zealand Parliament must be a New Zealand citizen at all times and, second, that an MP must vacate his or her seat if he or she acquires the citizenship of another country by grant. This means that an MP must vacate his or her seat in the New Zealand Parliament if, firstly, he or she accepts nomination as a candidate for election to another Parliament or, secondly, takes office, including by appointment, that involves the swearing of an oath of allegiance to a country other than New Zealand. But an MP who is entitled to citizenship of another country by birth or descent, who renews an existing passport to another country, or who automatically acquires citizenship as a result of marriage to a citizen of another country can continue as a member of the New Zealand House of Representatives and does not have to vacate his or her seat. I am sure that members of the House and the public would view this as a sensible arrangement. Turning to section 55E of the Electoral Act, the current wording of this section has it that when the Speaker of the House is absent the Governor-General or, in her absence, the Administrator of Government—either the Chief Justice or the President of the Court of Appeal—would be the person to whom a parliamentary leader must deliver notice that he or she is exercising the party-hopping provisions under the Electoral Act. Given the political nature of these provisions, it would be undesirable for the Governor- General or a senior judge to take such a role. The bill, therefore, substitutes a new definition of "appropriate person" in section 55E of the Electoral Act, which removes 14200 Electoral Matters Bill 29 Jun 2004 this anomaly by referring only to the Speaker, and which is consistent with similar provisions in the Electoral Act. In other words, in the absence of the Speaker, the Deputy Speaker would fulfil the function. The electoral broadcasting regime is vital to our healthy democracy. It allocates a slice of the pie to parties, whether they be big or small, to enable them to deliver key messages to voters in a fair and equitable way. Following inquiries into the 1996, 1999, and 2002 elections, the Justice and Electoral Committee has recommended a number of procedural and technical amendments to the broadcasting regime. While not all those recommendations have been included in this particular bill, it does include a number of straightforward amendments that will allow the Electoral Commission to more effectively allocate funds for electoral broadcasting for the next general election. It does this by removing some of the well-recognised anomalies and administratively burdensome processes of the current broadcasting regime. In particular, the bill will repeal the outdated requirements for the Electoral Commission to invite broadcasters to provide free or discounted time for electoral broadcasting—a process that must start some 8 to 9 months before Parliament is due to expire. The invitation process is administratively burdensome and achieves no greater level of discount than broadcasters would offer in the normal course of events. The select committee inquiry into the 2002 election saw no value in retaining those provisions. The change effected by this bill would not remove the allocation of free time for the opening and closing addresses that TVNZ and Radio New Zealand have to provide, but it will allow the Electoral Commission to conduct the allocation process more efficiently. Secondly, the bill amends the provisions of the Broadcasting Act so that only registered parties will be eligible for allocations of time and money. The current provisions allow unregistered parties to be eligible for an allocation if they have at least five constituency candidates on the eligibility date. The select committee considered that eligibility should be confined to registered parties in order to ensure that parties have some degree of public support before being eligible for an allocation of public funds. I agree with its recommendation. Because the invitation process, if it were to remain, would have to commence in November this year, and because a select committee has already debated the proposed amendments in relation to the broadcasting regime, I shall be asking the Justice and Electoral Committee to make its report to this House on or before 1 November 2004. The primary objective of bringing this bill before the House has been to amend the Electoral Act to clarify when a member of Parliament must vacate his or her seat. At the same time it has provided an appropriate vehicle and an opportunity for other amendments, particularly those that will assist the efficient operation of the Electoral Commission. The Justice and Electoral Committee has, of course, recommended a fundamental review of the law relating to parliamentary elections. The Government is giving further consideration to the significant matters raised by the committee and the scope, resource implications, and timing of the work required to undertake this review. I intend to move that the bill be referred to the Justice and Electoral Committee for consideration, and that the committee present its final report on or before 1 November 2004, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, and during any evening on a day on which there has been a sitting of the House and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191, and 194(1)(b) and (c). I commend the bill to the House. LINDSAY TISCH (National—Piako): On behalf of National I want to take a call that primarily will deal with the changes to the Broadcasting Act. But, firstly, I would 29 Jun 2004 Electoral Matters Bill 14201 like to comment on the changes the Associate Minister of Justice mentioned that relate to the eligibility of people to stand for Parliament when they cease to be a New Zealand citizen, or acquire dual or multiple citizenship except by descent or birth. Those criteria, which are mentioned in the explanatory note, can be regarded as coming about because of the Harry Duynhoven case earlier, when we had the Electoral (Vacancies) Amendment Bill, so I will be referring to the "Harry Duynhoven amendments" that will come forward. It will be very interesting to see in the Justice and Electoral Committee how that matter will be handled. As I mentioned, I want to spend my time on the other matters, because they affect the way that we will be operating the next election. I draw the attention of the House to the select committee report Inquiry into the 2002 General Election. One of the points made in that report—and that inquiry was the third inquiry following a general election, after the 1996 inquiry and the 1999 inquiry—was that recommendations that had been made had not been carried through. National will support this bill going to the select committee because it allows a very focused attempt, in the short term, to remedy some of the inconsistencies and problems that were highlighted in those previous inquiries. But I make the point that what we are doing today does not matter, because the Electoral Act is riddled with ad hoc fixes and additions, and there is very limited capacity in the system to consider the overall effect of changes that are made. We know, election after election, that there are things we would like to see changed; we would like to see some things done differently and we would like to make improvements. Yet Parliaments over that time, since the 1996 election, have not had the will to do anything about it. After the 2002 inquiry it became very clear that a fundamental review of the Electoral Act of 1993 needed to be undertaken. I was on that inquiry, and I am happy to say that I believe that the way the review will be set up—with the prospect of there being major changes that the parties can debate and agree to, and that will come into effect for the 2008 election—will be welcomed. Those areas that the review might cover include electoral organisational structures, State funding, election broadcasting rules, party donation disclosure regimes, the changes to the Broadcasting Act of 1989, a common date for the broadcasting of all types of election programmes, the inclusion in Part 6 of the Broadcasting Act of a procedure for establishing the start date for opening addresses, and, of course, the taxation status of political parties. All of that, in effect, is a very good start, but it is part of the big review, which, I understand, Tim Barnett will be chairing, and which will have an effect in the longer term, on the 2008 election. In the immediate future, however, for the 2005 election, there are some changes that are mostly technical in nature, and they are included in this bill we are debating this morning—the Electoral Matters Bill. With that in mind, I want to comment briefly on a couple of areas that I think are important. Since 1990 the amount of money allocated to political parties for broadcasting has remained very low. If we take into account inflation and the costs associated with broadcasting over that period of time, we see that the initial figure of just over $2 million will be increased up to $3.212 million inclusive of GST. If I look at the cost of inflation and other associated broadcasting costs, I think that increase does take account of those particular areas. I also want to draw attention to new subclause (4)(b) of clause 2A of schedule 1 of the principal Act, which is in clause 8(2). We have the situation where there are two nominees on the Electoral Commission, one representing the Government and one representing Opposition parties. It is important that there is not a majority in that area. The bill actually allows that a quorum would consist of one of those people and not necessarily both of them. I think that is important because, over the years, there has been some disquiet about those additional members being on the commission when it is 14202 Electoral Matters Bill 29 Jun 2004 considering the allocation of funding—the State funding provisions. This provision says it is OK if only one of those representatives is there, and that both of them do not necessarily have be there, which in fact may have given the balance of power, as it were, to members who are not on the commission—who are just additional members. Those are areas that I think are significant. I am also interested to note that, in relation to the allocation of time and money being determined according to whether the parties are registered at a certain time, the cut-off point of 3 months before the election will now disappear, and the date that will now apply from is when the election is actually called. The eligibility cut-off point of 3 months before the dissolution of Parliament can have a retrospective effect when a general election is held earlier than expected, but not so early as to bring an early election provision under section 76C of the Broadcasting Act into effect—in which case, the eligibility date for registered parties is the writ date. I think that what this measure is doing is saying that if a party wants an allocation of State funding—and the provision relates to State funding for political parties—then that party has to be registered at the time, and it has to have made a commitment that it will run in the election. The issue was very vague before, and I think this measure certainly tidies up those provisions. The bill also allows for variation of allocations. I think the Electoral Commission has a responsibility to look at the variation of allocations. Members will be aware that in past elections some of the parties did not measure up, even though they had been initially allocated funding. If they did not meet the criteria set by the commission, then they lost that funding, which was reallocated to those parties that meet the criteria. For the 1996 election and for the 1999 election I was National's representative in putting our case to the Electoral Commission. Having fronted up to the commission and put our case in those two elections, I know what the criteria were, what was involved, and how detailed one needed to be in terms of putting a case for State funding for a party. The amendments in clause 21 to section 76A of the Act give the commission the power to vary the parties' allocations if there is sufficient change in the circumstances on which those allocations were based, thus avoiding unfairness and subversion of the allocation process. I think that is a good criterion for the commission to have. Although these changes are technical, the point I made right at the beginning is that there needs to be a complete overhaul of the Electoral Act. We are moving towards another MMP election, and this bill will have only a small effect on it. But the bigger picture is the special review of the Electoral Act that will take place, which, of course, will affect the 2008 election. National looks forward to being part of that review. TIM BARNETT (Labour—Christchurch Central): I am happy to follow on from Lindsay Tisch, and I welcome the fact that on a lot of electoral issues we actually manage to get some level of unanimity around this House. However, in terms of this legislation, I have to say it is great to see a Government prepared to tackle some of the issues that others saw as either too hard or too complicated, and that, for years, sat as administrative burdens on the Electoral Commission—and, indeed, sat as legislation on the Order Paper prior to the last election. I am glad they will now finally be dealt with in what I expect to be a reasonably uncontroversial piece of legislation. We are developing what I think is a really healthy cycle in Parliament whereby a review of the election is held by the Justice and Electoral Committee after each election. This is the second time that a number of recommendations that arose out of the select committee report have gone forward to become legislation that is passed in time for the next election. The focus between 1999 and 2002 was on electoral administration issues. There were, I believe, 87 reforms to the way in which the election was administered in 29 Jun 2004 Electoral Matters Bill 14203 2002 compared with in 1999. The general view of the select committee was that the 2002 election ran a lot more smoothly. This time the issues, in a sense, as Lindsay Tisch pointed out, are more major and more mundane. This bill deals with the mundane side of things in the sense that quite a number of the aspects of the broadcasting regime are complicated, are anomalous, and could conceivably lead to the Electoral Commission being in a really awkward position if a combination of circumstances arose. I think the passing of this bill, which, hopefully, will be improved by the select committee, will actually be a way to ensure that the commission can manage most effectively any risk it has for the election next year. But there are a number of major issues that the Justice and Electoral Committee inquiry touched on that do require more fundamental examination. One problem with the 3-year cycle is that by the time the select committee, which is doing lots of other business, has dealt with the matters around the last election and produced a report, and that report has been considered by the Government, which might produce a bill, we are within 12 to 18 months of the next election. It is very hard to have fundamental debate on issues completed in that time and have measures in place for the next election. The unique thing that has happened this time is that the report of the select committee into the election, as well as dealing with a lot of the detailed broadcasting matters that are contained in this bill, has also raised the fundamentals, which for a long time—even for too long—have been the subject of partial debate. These are the issues of donation transparency and State funding of party administration. We already have State funding of ongoing party communication, through leaders' allocations, and we already have State funding of broadcasting, which is obviously relevant to what is in this bill. But the issue of State funding of administration, which was referred to in the Royal Commission on the Electoral System in the 1980s, is unfinished business. In my mind, our finishing it will help to mature our whole electoral and political system as MMP starts to bed in. We need to have that debate. What is interesting, in terms of the debate in the select committee, is that I think there is now general acceptance that there are issues that need to be covered. By beginning that review before, hopefully, the election next year, we will actually be in a position to report back, and to put in place any amendments resulting from it, before the 2008 election. The other issues that need to be covered by that review process comprise a lot of the other anomalies that are appearing in the Electoral Act. I think the citizenship matter is a very good example. It was a fishhook that no one had foreseen; issues arose, the Government had to deal quickly with a situation, and it was dealt with quickly. It took up the time of the House, and it took up a lot of political energy on all sides. What we do not want—and I think it is a statement about our democracy, not a statement about who is in power at the time—is for those kinds of issues to keep arising. By having this legislation, which deals with that citizenship anomaly but also with the commitment by the Government to look at the concept of a select committee - led review of the Electoral Act that reports back in time for reforms to be in place for the 2008 election, I think we now have general consensus on the select committee, between parties, that that process is necessary. In the meantime the Electoral Matters Bill has some urgency attached to it, because we have to get it back in time for changes to be made. I am sure the select committee, with the permission of the House to meet while the House is sitting, will be able to manage that business comfortably, partly because we already undertook a consultation cycle on these matters only about a year ago, and I cannot imagine there are many agencies with new comments to make about these issues. So, essentially, the bill is non- 14204 Electoral Matters Bill 29 Jun 2004 controversial legislation. It reduces the risk attached to the administration of the election next year. I believe that its passage will be straightforward, and I believe that our select committee will do the job very well. On the basis of that, I would like to commend the bill to the House. DAIL JONES (NZ First): We have had two very interesting speeches on the Electoral Commission aspect of this legislation and the amendments to the Broadcasting Act. I wish to speak to Part 1. I do not wish to refer to the matter that took place last year, other than to show how it is relevant to what is happening today. One of the issues that arose last year was the advice of the Crown Solicitor expressing concern about a member of Parliament renewing a passport or travel document after becoming a member of Parliament, and the uncertainty relating to whether that placed that member of Parliament's position in this House in jeopardy. The Government has introduced this bill that now contains a clause inserting new section 55AA, which states: "Despite section 55(1)(b) and (c), the seat of a member of Parliament does not become vacant by reason only of the member—(b) renewing a passport or travel document that was issued to him or her by a foreign State or Power before the member took office." If at the time this Act was first passed—and we go back many years—members of this House thought that renewing a passport or travel document was something that should debar one from being a member of Parliament, was that a good idea, and should it be continued rather than revoked? I just raise that point and hope we will get submissions on it, because I believe that once one becomes a member of the Parliament of New Zealand, one should be travelling only on a New Zealand passport. That member should not renew any other passport, and should not be travelling on any other travel document. Either one is loyal to this place or one is not. It is my view that we set the standard. I have indicated that we set a standard in other areas, and here we are setting a standard too. It is the standard we set as the leaders of this country—one that says we can put our nationality on our sleeves and just change our nationality as we wish. Today we could be New Zealanders, tomorrow we could be any other nationality that might apply to this House. I am not picking on anyone; I am saying everyone in general, and it includes, I suspect, members of all parties. I can have the nationality of more than one country, but since I became an adult I have only ever had a New Zealand passport, and I have only ever travelled on a New Zealand passport. Hon Harry Duynhoven: Same here. DAIL JONES: I ask that member, and other members, that if they agree with me, why do we have new section 55AA(b) in this bill? Why do we not have a clause that says that if one renews another country's passport, or travels on another country's travel document while a member of this Parliament, then that member has placed his or her position in this House in jeopardy, and he or she should resign. Hon Harry Duynhoven: Let's get the facts right—neither of those things apply. DAIL JONES: No, I am not attacking the member at all. I am just making— Hon Harry Duynhoven: Of course he is! DAIL JONES: I am not attacking that other member. I wish he were not in the House today and was perhaps watching a replay on television, because this situation could apply to me. I am saying that we are members of this Parliament, we set a standard as New Zealand citizens, we always travel on a New Zealand passport, we never renew any other passport—or we decide that we do not want to be members here. An interesting situation is now developing in New Zealand. The other day I was having a discussion at a soccer club over a few drinks after the game. One of the people in the conversation, born and bred here and very proud of being a New Zealander, was making comments about being a New Zealander and suchlike. Someone else chirped up 29 Jun 2004 Electoral Matters Bill 14205 and said he had come here 30 years ago and always travelled on his former country's passport. There was no way that he was going to change, but he was going to tell me, as a member of Parliament, how this country should be run. The New Zealander looked at this other person and said: "If you're not going to be a New Zealander, you shouldn't be telling people how to run this country, even if you have been here 30 years, paid taxes, and will get superannuation and everything else as well." What I am asking is this: have we reached that stage of maturity in New Zealand where people should start making decisions as to whether they are New Zealanders first and foremost? Should not this House be setting the standard and saying that we are New Zealanders first and foremost, we do not want to travel on other countries' passports, and we do not want to renew another country's passport while we are representing this country in the most important way possible? So I hope we will get submissions on that clause. The other clause that interests me is clause 5(1)(b), which has an interesting little change. Currently, the Act states in section 55(1): "The seat of any member of Parliament shall become vacant … if he or she takes any oath or makes any declaration or acknowledgment of allegiance or adherence to any foreign Prince or Power"—which is where the passport one came in as well. But the amendment now goes on to add "whether required on appointment to an office or otherwise;". I am just wondering why we have that, and whether it applies to people who might be consorts—to any person who might be the consort for Monaco, or somewhere else like that. I wonder whether that particular person has noticed those few words being added in, and whether, if this bill is passed in the form it is now, he or she will have to resign that position. I will be interested to hear submissions on that matter, possibly from that member, who is also a member of the Justice and Electoral Committee. Whether he has an interest in the matter, I am not sure, but he may have to remove himself from the committee. I am not being mischievous, but just stating the facts as I see them. I draw this matter to the attention of that member, and I look forward to seeing what this part of the bill actually means. ROD DONALD (Co-Leader—Green): The Green Party will be supporting this bill's referral to the select committee—indeed, aspects of it are long overdue. I would like to deal with the four aspects of this bill in the order they appear. The first one makes permanent what has become known as "Harry's law", and that is a good thing in our view. Members of Parliament should not be forced to resign because of where they were born or whom they are descended from. That is why the Greens supported the changes to the law to protect not only Harry Duynhoven but, I suspect, some other members of this House last year, and that is why we support making it possible for sitting members to review any foreign passport they may already have, and to become a citizen of another country, but only where this is because of their descent or place of birth. These changes make the law consistent. As we all know, a member can already become a dual citizen by virtue of marriage— Hon Harry Duynhoven: That was the result of a parliamentary petition, too. ROD DONALD: It was indeed. It was the result of somebody who, I think, must have been breaking the law, and the law was fixed up to suit that person at the time. But the changes do not allow an MP to actively seek foreign citizenship for any other reason, and we obviously want to see that situation maintained. The bill maintains an amendment, originally proposed by the Greens, that requires an MP to resign from Parliament if the MP ceases to be a New Zealand citizen. When we were having discussions on the amendment last year, I found it extraordinary that such a requirement was not already in place. Perhaps that is because of the carry over, whereby 14206 Electoral Matters Bill 29 Jun 2004 people could stand for Parliament if they were New Zealand residents and on the electoral roll on, I think, 12 August 1975 but did not have to be New Zealand citizens. That, of course, has all changed, and it is now a requirement that MPs cannot cease being a New Zealand citizen during their term in Parliament, or they risk losing their seat. It is also pleasing to see that "foreign Princes" have been removed from our law; they are now referred to as "foreign States". Perhaps that is yet another important step towards republicanism. The second aspect of the bill is the change to the definition of "appropriate person" in relation to party hopping. It is a significant change, and we support it because it protects the Governor-General from getting involved in grubby politics. But the need for this amendment highlights, yet again, what shoddy legislation the so-called Electoral (Integrity) Amendment Act was—and is. Hon Ken Shirley: It was! ROD DONALD: I am pleased to hear my colleague Ken Shirley support me on this, because, of course, the ACT party was at the forefront, along with the Greens, in opposition to the party-hopping legislation. As I recall, Stephen Franks drafted an excellent minority report opposing the party-hopping legislation. He pointed out the draconian powers it would give party leaders and how obscene it would be if any party leader chose to exercise the powers contained in those amendments. I know that Mr Shirley also gave an excellent speech opposing giving party leaders those powers. I must say I am very sorry to find that the only party that has tried to exercise the powers contained in that legislation is the ACT party. It is a gross abuse of our democracy, and the sooner that law dies the better. The fact that the courts are now having to rule on its application is another example of the undermining of parliamentary sovereignty. This House should never have allowed that to happen—especially to have inflicted upon itself the opportunity for members, quite rightly in my view, to resort to other courts to maintain their position in this House because they believed that the Electoral (Integrity) Amendment Act was being used in an inappropriate way. I would like to foreshadow that the Greens will propose amendments to this bill to repeal the whole of section 55E, and we look forward to support from all those parties that opposed the imposition of this draconian legislation at the time, so that we can put an early end to this sorry saga in New Zealand politics. [Interruption] Mr Shirley is vacillating now, having opposed it so strenuously before. I am not sure whether he is prepared to have the courage of his convictions now. Mr SPEAKER: The member will withdraw that comment. ROD DONALD: I withdraw and apologise. The Green Party will also be moving an amendment to the third aspect of this bill. Although we support the amendment to the quorum for meetings of the Electoral Commission so that it can make broadcasting allocations with one of the party political representatives absent, we are absolutely totally opposed to both of those party political representatives being on the Electoral Commission when it allocates broadcasting time and money. It is extraordinary that the National Party and the Labour Party get to sit on a commission and make decisions about the allocation of money to every other party in this House—namely, New Zealand First, ACT, United Future, Green Party, and to any other registered party standing for Parliament. The provision is archaic and should have been abolished when first-past-the-post was abolished. Our amendments will get rid of party political appointments to the Electoral Commission. In saying that, I do not want to impugn any of those people who have served on that commission. I am merely pointing out that it is impossible for those people to represent all the competing interests in this Parliament and of those parties out in the community who are hoping to win seats in this Parliament. Indeed, the commission has drawn that 29 Jun 2004 Electoral Matters Bill 14207 observation itself in its own reports, and if members want to read the debate we had on the 2002 general election inquiry held a few weeks ago, they will see that I had to say more on that point. The fourth aspect of the bill that we support relates to some anomalies in the broadcasting legislation as it applies to political parties. The reason I personally support those changes is that I was on the select committee that reviewed the 1996 election, and that is when we came up with most of the amendments that are finally coming back to this House—although I have to say it is not the first time they have come back to this House. So I shall reserve judgment on the Government's commitment to this bill until we actually see it passed, hopefully later this year, so that the commission does not have to go through the extraordinarily useless process of writing to every broadcaster in this country to see whether they will be offering discounts to political parties. That is a waste of time that has been inflicted on the commission for the last two elections, simply because this Parliament did not get its act together. I remind this House that the amendments in this bill to the broadcasting legislation were virtually all in a bill that was introduced on 29 September 1998. That is when the then National Government recognised the need for change, as a result of the 1996 election review. That bill had its second reading in November, submissions were called for in February 1999, and the select committee finally reported back in May 1999—too late to be of any use for the 1999 election. So already the then National Government had stalled that legislation to stop it getting through. In fact, I managed to come across the speech notes I had prepared for the second reading debate, which I never got to deliver and will not get to deliver today. But I chastised the National Government at the time for dragging the chain. Indeed, on 27 May 1999 the House adjourned 15 minutes early, when the broadcasting legislation was next on the Order Paper. We could have dealt with it then. But, oh no! It was still on the Order Paper at the 1999 election. It was still on the Order Paper on 17 February 2002 when the Labour Government discharged it for no good reason that I can fathom, except that it was, again, already too late to have any benefit for the 2002 election. So I sincerely hope it will have some benefit for this next election. I look forward to the select committee dealing with it because I think there are a few things that could be improved in the bill. There is a ridiculous section now— which is hard enough to understand, let alone apply—which is that the commission will not make payment if it receives a bill from a party no later than 30 working days after the month in which the election was held. Would it not be simpler just to make it 60 days after the election was held? I close by endorsing what the chair of the select committee, Tim Barnett, had to say about the fundamental review of the whole area of donation disclosure and State- funding of political parties. I only wish that the select committee had had what it takes to grapple with those issues here and now, rather than putting it off for some future time. Hon KEN SHIRLEY (ACT): The Electoral Matters Bill is the wash-up from the review of the last election, and of the one before it. Mr Barnett claimed that this was only the second review that had ever been undertaken. That, of course, is nonsense. Parliament has reviewed its procedures from elections throughout the ages. That was really a bit of self-congratulatory pap at best, I think. There are ad hoc tinkerings associated with this bill, but it does not pick up all the recommendations of the Electoral Law Committee. That, I believe, is regrettable in itself. I think those recommendations should have been picked up. If we look at the amendments to section 55 of the Electoral Act, firstly we see what is being referred to as the "Harry's law" amendment. I think this Parliament needs to reflect on that, because I do not think Parliament behaved well on that issue. The law 14208 Electoral Matters Bill 29 Jun 2004 may have been unreasonable and may well have been unfair, but nevertheless it was the law, and the very fact that we are making these amendments here today underpins the point that at the time when the Harry Duynhoven issue arose that was the law. Under the current law the Speaker has no discretion, but must act forthwith and declare a vacancy. That did not happen, and I believe that is a constitutional problem that this Parliament lives with. It is regrettable. It most certainly would have been unfair on Mr Duynhoven and it may well have been unreasonable, but it was the law. The difficulty is that when the Speaker does not act when he should act, that creates a precedent. There are many, many very important constitutional matters that do require action. If the situations when the Speaker does or does not act are picked at random, there is a very serious problem, indeed. The other aspect of section 55E of the Act is the clarification in this bill of the definition of an "appropriate person". I agree with Mr Donald that the party-hopping legislation brought to this Parliament by Dr Cullen for overt political reasons is very bad legislation. That has always been the position of the ACT party. It is very bad legislation, and there is a delicious irony in the fact that the only party that may invoke that legislation could well be the ACT party. I have no difficulty with that, and I want to be right upfront on that. I do not believe in a taxation rate of 39 cents in the dollar. I think that is a bad, foolish, stupid law, but I pay it because it is the law. ACT is a law- abiding party. We believe in the rule of law and if the Government makes stupid laws like the party-hopping legislation, then it is the law and it does stand. So that is the situation with regard to that matter. The other issue we have is the question of the Electoral Commission and the various broadcasting regimes. I think it is an outrage that the major parties in this Parliament have used the tyranny of the majority to ensure they both have a party representative on the Electoral Commission, which makes the determination of who gets money for broadcasting, and of how much people receive. The two major parties use the tyranny of their majority to put their own people—their own stooges—on the commission, to make sure that they queer the pitch in their own favour. That is wrong in principle. It could be argued that the commission should be independent, but I would take the argument further and ask why on earth we need an Electoral Commission at all. It is totally unnecessary. We do not need the State to dictate to us, and to set up commissions on who can advertise and on how people can promote themselves. All sorts of anomalies still exist with that system. We seem to have a fixation that we cannot advertise on radio or television, but we can put unlimited advertising in the newspapers—as indeed we have seen in recent weeks, with the parties who had not organised their affairs very well trying to spend all the taxpayers' money allocated to them before the end of the financial year. Parties have been engaged in great, wasteful splashes of advertising all over the metropolitan papers, just because they could not organise themselves. When someone in their offices realised there was a big bucket of money and they either had to use it or lose it, they splashed it all out on very expensive advertising. The worst example would have been New Zealand First's advertisement, with Winston Peters' photograph and the text of an old speech he had given. Winston Peters had an old speech printed and took up a full page of prime advertising space in the Sunday Star-Times, purely because he realised he had to spend up his allocated taxpayers' money before the end of the year or he would lose it. He had been so disorganised throughout the year that he had not organised the spending of the budgets appropriately, so he just splashed out on very elaborate advertising. What we have with regard to electoral broadcasting is an unnecessary and foolish restriction. Parties can have unlimited communication through the Internet or through newspapers, but somehow we have a fixation on broadcasting on the airwaves— 29 Jun 2004 Electoral Matters Bill 14209 whether it is on television or radio—and we have to have a big, elaborate State commission that sets out rules and appoints commissioners, and that the two main parties have their own stooges on. It is very bad. As I have said, we could argue that the commission should be independent, but I would go a step further and say we do not need it at all. The commission should be totally abolished; it is totally unnecessary. Other aspects of this bill concern us. I have outlined one, the "Harry Duynhoven amendment". It is a tidy-up, but it is also a recognition of a failure to act in a constitutional sense, which is rather important. The "appropriate person" issue in section 55E only endures for this Parliament. The Electoral (Integrity) Amendment Act was only ever to apply for one parliamentary term, so it is really almost redundant before it even comes into effect. It is after the fact, in essence. The other aspect is the electoral broadcasting regime. I have outlined ACT's position on that. We are opposed to it, because we do not believe we need it. MURRAY SMITH (United Future): The first part of the Electoral Matters Bill resurrects for us the farce of the legislation that was the Electoral (Vacancies) Amendment Act of 2003. That was a farce and no credit at all to this House and to this Government. It arose because the Hon Harry Duynhoven, a highly respected colleague, confessed that he might have breached the Electoral Act. The Privileges Committee found that was the case, with the Crown Law Office affirming that from an objective point of view. Other members were purported to have probably been in the same situation as Harry Duynhoven, but had failed to disclose it. The Government passed a bill that made a mockery of due process. The Government should have been at pains to demonstrate respect for the law as it stood, but instead in a cynical attempt turned the situation around and covered over a breach of the Act. I know that Harry Duynhoven was embarrassed about that situation, and he indicated that he would rather have had a by-election than that legislation, because of the doubt over it. It was a situation that, as the Hon Peter Dunne said in his first reading speech on that legislation on 6 August 2003, showed a preferential treatment of members of Parliament over ordinary citizens. I would go further than that and say it showed a preferential treatment of members of the Government over members of other parties, given the situation that subsequently arose with regard to Nick Smith. However, the real issues with regard to this bill—and it is appropriate that we should review the eligibility criteria—go back to the situation and the intention of the original legislation. That was very well outlined by the Hon Peter Dunne in his first reading speech, when he said: "one has to go back and look at the intention of the clauses that were passed—going right back to 1852. It is absolutely clear that the circumstances at the time of the passage of those clauses, and their subsequent carry-through, related to a far different world than our world today. At the time of their passage, there was, essentially, the British Empire, hostile Europe, and not much else … We can even take the situation right through to the outbreak of World War II, and argue with some validity that these provisions were relevant then—certainly in the way in which we detained people deemed to be hostile aliens. But I do not think that anyone could mount a reasonable argument today to suggest that relations with the Netherlands have so deteriorated that any member who takes an action in respect of that country is breaching the intent of the provisions set out in the original bill." The bill outlines four circumstances when it is suggested that a seat should become vacant. Those are when a person ceases to be a New Zealand citizen, when a person acquires dual or multiple citizenship, except by descent or birth, when a person is appointed to or takes an office that involves the swearing of an oath of allegiance to a jurisdiction other than New Zealand, and when a person accepts nomination or agrees to be a candidate for election to another Parliament. In that respect, there are a couple of 14210 Electoral Matters Bill 29 Jun 2004 points to note. One is that section 55(1)(c) of the Electoral Act is not deemed to be altered. That provision states that if a person "does or concurs in or adopts any act whereby he or she may become a subject or citizen of any foreign State or Power, or entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power;", he or she vacates the seat. That may well prove to be really too onerous. That was the situation the Hon Harry Duynhoven faced, as well. The situation whereby a person may become a subject or citizen of another country may be wide ranging. Once again, I am not sure whether it is appropriate to put such a harsh restriction on what could be an unintentional default and have a seat vacated. Also, we should look carefully at the area of whether a seat should become vacant when a person accepts nomination or agrees to be a candidate for election to another Parliament. I can well envisage a situation whereby members of Parliament who had close family connections with Pacific Island communities, such as Samoa, were looking to stand for an office there because they were intending to leave their seats here and go and live over there, or something of that ilk. The fact is that their seats would become vacant if they even agreed to be candidates there in future—there is no time limit here. Such people may say that they will finish up in New Zealand and go over there, and that they would be happy to stand for Parliament in a few years' time when they get there. That would be an agreement to stand, and could in itself be sufficient to bring this clause—if it passes—into effect, and mean that their seats were vacated, even though they were talking about a time in the future. I think we need to look very carefully at that. I am not sure whether it is entirely appropriate that people who have some affiliations with other countries should, in a lot of instances, be debarred from being in this House, but that is something we can look at in the select committee. I welcome the discussion that will take place with regard to that, and welcome the outcome of it. I am sure it will be an interesting discussion. The second part of the bill relates to the Broadcasting Act. Certainly a number of things within that Act need to be clarified. These are small, largely technical amendments, and there are some interesting issues there that have given rise to unnecessary bureaucracy in the past. It is just a pity that recommendations for these changes have been around since the inquiries into the 1996 and 1999 elections, as well as into the latest one, and that it has taken all this time to address them. In particular, some of the issues are, firstly, the question of the allocation to political parties of time and funding for election broadcasting when there are by-elections. Given that by- elections are all about constituency positions and not list positions, it is quite appropriate that we remove references to giving party funding in those sorts of instances. Secondly, the bill as drafted also provides for the removal of the need to circulate to all broadcasters an invitation for free time. I know from my experience as secretary of the United Future party, and of the Future New Zealand Party before that, that we used to get a mound of paperwork around election time from all sorts of broadcasters—radio mostly—that had all been invited to say whether they would give free time. They all came back with screeds of paper—we would get those plonks of paper landing on our desks at various times through the election campaign—and basically stated that they were quite happy to provide the time if it was paid for. I think it is quite a good idea to restrict that, and to take away the huge paper war the Electoral Commission has had to handle. I also think, in terms of the whole democratic process, it is quite appropriate that electoral parties can register right up until the dissolution of Parliament, and not up until 30 days beforehand, particularly with regard to a snap election, which can catch some parties on the hop. I think that change is an improvement, in terms of the democratic process. I think that the measure for the resolution of disputes proposed in section 77, 29 Jun 2004 Electoral Matters Bill 14211 inserted by clause 22, is also very positive. A situation can arise during elections called at short notice whereby parties are unhappy with the way that broadcasters are treating them vis-à-vis other parties, in particular, and a quick mechanism for the Electoral Commission to have the ability to resolve those disputes and give a final decision is, I think, a good thing for everybody concerned. It may be that the outcome is not a happy one, but someone simply does not have the time to go through a core process in the heat of an election and have a dispute meaningfully resolved in a situation in which it will have an immediate effect. Nobody really wants to litigate the thing after the event—it seems to be a mere academic exercise at that point. I think that a quick dispute resolution process is a welcome measure here. United Future will support this bill being referred to the select committee, and we look forward to the discussion and debate that will surround these issues. Hon JOHN TAMIHERE (Minister of Youth Affairs): I commend the first reading of this omnibus Electoral Matters Bill to the House. In doing so, I want to make a number of observations about previous speakers. The Green member Rod Donald and the Hon Ken Shirley from the ACT party stood up and proselytised about the Electoral (Integrity) Amendment Act, which is also known as the "party-hopping" legislation. Integrity is an interesting term for those two people to refer to, because veritably they have gone boing, boing around this House. They have been in more parties than the honourable "member for Courtenay Place", Winston Peters, and that has to be saying something. Rod Donald has been in so many parties—the Values Party, the Socialist Party, the Green Party, the Alliance—that if we name a party, he has bounced around it. The Hon Ken Shirley is the same. The Hon Ken Shirley gave an opinion with regard to the Electoral (Integrity) Amendment Act. ACT members railed against that Act—they voted against it, they hated it, and they bemoaned it. But ACT is the first, and is likely to be the only, party that seeks to apply it. That is the type of standard that is brought to the House by the ACT party. I regret that. I want to commend the work of the Justice and Electoral Committee. It is a very fine committee, and the type of report that it brings to this House is excellent. It is also noted that the amendments proposed in the bill in relation to the broadcasting regime are intended to enable the Electoral Commission to allocate funds more effectively. I too regret that more work was not done with regard to the way that parties could be funded, the way that we disclosed the type of funding, and the like. That is a very important debate that must be had at another time. I want to note, though, that parties have spent taxpayers' funds, allocated to their parliamentary services, in ways that taxpayers really need to have a good think about. National Party members have run huge advertising pages, and have stood up and said all sorts of misleading and wrong things. If that is the way the National Party wants to conduct itself—by inappropriately spending parliamentary funds and money the taxpayer has voted for it—and if it cannot manage its affairs any better than that, then it has to be said that the party is in great difficulty and has great problems. I want to conclude by indicating that Kiwis want finality and certainty with regard to the members of Parliament who represent them. To that extent, this legislation indicates quite carefully and clearly why an MP should cease to be an MP. There are four counts: that the MP ceases to be a New Zealand citizen; that the MP has acquired dual or multiple citizenship, except by descent or birth; that the MP accepts nomination, or has otherwise agreed, to be a candidate for election to another Parliament; and that the MP is appointed to an office that involves the taking of an oath, or the making of a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign State or power. I think we all agree that we should bring those matters to some finality and give some certainty to them. I want to acknowledge the role that the Hon Harry 14212 Electoral Matters Bill 29 Jun 2004 Duynhoven has brought to bear in ensuring that in terms of our constitutional processes we now have certainty, clarity, probity, and propriety. Bill read a first time. Hon RICK BARKER (Associate Minister of Justice): I move, That the Electoral Matters Bill be referred to the Justice and Electoral Committee for consideration, and that the committee present its final report on or before 1 November 2004, and that the committee have the authority to meet at any time while the House is sitting, except during questions for oral answer, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c). A party vote was called for on the question, That the motion be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Motion agreed to. CRIMINAL PROCEDURE BILL First Reading Hon RICK BARKER (Associate Minister of Justice), on behalf of the Minister of Justice: I move, That the Criminal Procedure Bill be now read a first time. I also intend to move that the bill be referred to the Law and Order Committee for consideration. This bill contains criminal procedural forms that the Government has been working to develop since 2001. It responds to Law Commission recommendations and developments overseas, particularly in the United Kingdom. It includes changes relating to jury trials, exceptions to the double-jeopardy rule, and reforms to preliminary hearings and disclosure. I turn to the matter of jury reforms first. This bill proposes to introduce 11:1 majority verdicts instead of the current requirement for unanimity. That is partly to address the problem of rogue jurors who, by refusing to participate in the deliberations, produce a hung jury for reasons that have nothing to do with the merits of the case. Retrials take time and money and prolong the ordeal for everyone involved, including victims and witnesses. Alternatively, sometimes a single juror is pressured by the other 11 to return a verdict against his or her conscience—which can be traumatic for that person. Majority verdicts will allow that dissent to be registered, and therefore produce more honest results. They will also make jury tampering by bribery or intimidation more difficult for organised criminals to achieve. Although the majority verdict reform will inevitably attract comment and discussion, it is not radical. The UK, for example, has had 10:2 majority verdicts since 1967. This bill also provides for trial by judge instead of jury in two circumstances: firstly, when the trial is likely to be complex and longer than a month. Evidence suggests that jurors have trouble coping with very long trials, particularly where there is a large amount of very complicated evidence. There is also provision for a judge-alone trial if there is evidence of jury intimidation, which from time to time has been an issue in gang-related cases. For similar reasons, new restrictions will be placed on the distribution of jury lists. Recently, the Government announced a $9 million boost to jury fees. This bill contains further measures to make it easier to serve on juries. These include allowing 29 Jun 2004 Criminal Procedure Bill 14213 jurors, when summoned, to defer jury service for up to 12 months to a more convenient time of their choice. It also becomes an offence for employers to prejudice the position of an employee by reason of that person's absence on jury service. At the same time, the penalty for failing to answer a summons will increase from $300 to $1,000. The bill creates two exceptions to the double-jeopardy rule: tainted acquittal and cases of compelling new evidence. That is consistent with the law in the United Kingdom, and with reforms proposed in Australia. The tainted acquittal exception will apply if an acquitted person is later found guilty of evading justice at the first trial by committing an offence such as perjury or intimidating a witness. That will ensure that those who resort to such tactics cannot benefit from their own wrongdoing, and will therefore remove the incentive to offend in that way. This reform was recommended by the Law Commission and followed the case of Kevin Moore, in which a gang member who was tried for murder persuaded a witness to give false evidence for him and was acquitted. Because Moore could not be tried again, he literally got away with murder. The second exception relates to compelling new evidence. The reason for this exception is the importance, particularly for victims, of ensuring that the criminal justice system can achieve the right result for very serious crimes. There have been cases overseas where conclusive evidence of guilt has surfaced, post-acquittal. It is my view that most New Zealanders would be outraged if that situation occurred here and our justice system was unable to bring the offenders to justice. The compelling new evidence exception departs from the criminal justice tradition of only one trial. For that reason, it is subject to a long list of safeguards. The exception will apply only to offences with a maximum term of imprisonment of more than 14 years, such as murder, rape, and class A drug dealing. The evidence must have been unavailable at the time of the first trial, so that the police have no incentive to indulge in sloppy practice. The evidence must be reliable and indicate with a high degree of probability that the acquitted person is, in fact, guilty. Consent to proceed in cases of compelling new evidence must be brought at each stage. The police will not be allowed to reinvestigate and acquit a person without consent from the Solicitor-General. The Court of Appeal must in turn be satisfied, following reinvestigation, that compelling new evidence of guilt exists, and that a retrial would be in the interests of justice. The double-jeopardy exceptions are not retrospective, which means that acquittals obtained before the legislation commences will remain intact. I welcome submissions on this issue. I would also like the Law and Order Committee to consider whether a 14-year threshold for compelling new evidence will capture the right kinds of offences, and whether the tainted acquittal exception should apply only when an administration of justice offence has been committed by third parties. The third major issue of reform in this bill relates to the preliminary hearings procedure. Preliminary hearings are currently held before jury trials to act as a filter to ensure that improper prosecutions are dismissed at an early stage. However, in practice, police almost always—in about 93 percent of cases—collect sufficient evidence against all alleged offenders to satisfy the court that there is a sound basis on which to proceed. For this and other reasons, the Law Commission concluded that preliminary hearings are largely redundant. Such hearings also require victims and other witnesses to duplicate their court appearances, which is both stressful and unduly demanding. The bill therefore provides that the standard pre-trial procedure will be for parties to present their evidence in the form of written statements, with automatic committal for trial unless either party applies for an oral hearing. Oral hearings will be permitted only in limited circumstances where either party wishes to examine one or more of the witnesses, and a District Court judge agrees that it is appropriate. This will reduce 14214 Criminal Procedure Bill 29 Jun 2004 demands on court staff and facilities, and may mean that some cases can be more quickly disposed of. In the absence of a preliminary hearing, it is important to ensure that adequate and timely disclosure still occurs so that defendants can prepare their cases and determine how to plead. At present, prosecution disclosure before a trial is regulated by a mixture of case law and statutory rules under the old Official Information Act and the Privacy Act. This bill codifies disclosure requirements. Under these procedures, the prosecution is required to disclose to the defence all relevant information unless there is a good reason to withhold it. Defendants also have to disclose obligations relating to alibi evidence and notice of intention to call expert witnesses. In some circumstances, defendants will also be able to obtain information held by third parties such as the Institute of Environmental Science and Research. One issue the select committee considering this bill may wish to explore is whether an equivalent right should be available to the prosecution—for example, if it wished to obtain material used by the defence experts in preparing its brief. Overall, this bill contains numerous amendments to criminal procedure legislation, all designed to ensure that criminal proceedings can be more efficiently managed while ensuring maximum fairness for everyone involved. I recommend that the bill be referred to the Law and Order Committee for consideration. I commend the bill to the House. RICHARD WORTH (National—Epsom): This is a bill of 100 clauses that has very far-reaching significance. From the perspective of National members, we support this bill going to the Law and Order Committee that has been assigned to deal with it. It will be one of the most important pieces of work, I believe, that will be done in this Parliament. It will attract substantial interest from those who study criminal jurisprudence and, if even only some of these reforms are enacted, the impact on the criminal courts will be truly substantial. There are, as the previous speaker has said, a number of substantial changes that the bill proposes. The first, but I do not necessarily think the most controversial, deals with majority verdicts in criminal cases, and I would like to come back to that in a moment if I may. Then there is the issue of trial by judge alone instead of by a jury, where there is evidence of juror intimidation, or the trial is complex and long. Quite clearly, the philosophical issue there is whether we should move away from what has been a hallmark of the legal system in most common law countries, which has seen an accused person tried by his or her peers and not by a judge alone. There are provisions dealing with more limited challenges to potential jurors, and in the context of changes to the jury system, increased penalties for failing to respond to jury notices. Then, as the previous speaker has said, there is the highly controversial proposal of the Government, in the context of the qualifications the Minister made, to substantially change the law relating to double jeopardy. I will come back to that. Perhaps two further changes are worth noting: preliminary hearings, where the evidence would be presented in written form unless the judge decides that an oral hearing is required; and, finally, revamped provisions for criminal disclosure. It is quite clearly the case that in a number of criminal trials, the defence seeks to catch the prosecution unaware. Where there are issues of guilt and innocence to be determined in the context of an offender's conduct, it is important that there be no surprises. A surprises strategy can often lead to a miscarriage of justice. I come back then to the first topic that I said I would return to, which relates to majority verdicts. The present law in New Zealand is that in all criminal cases, the verdict must be unanimous. That is not a statutory requirement, but derives from the common law. There is no statutory requirement for unanimous verdicts. As far as statute law goes, it is simply this. Section 17 of the Juries Act states that: "Every jury shall 29 Jun 2004 Criminal Procedure Bill 14215 comprise 12 jurors." The Act says nothing about the numerical balance required to support a verdict. While a jury of fewer than 11 jurors is legally possible in New Zealand, a court is prohibited from proceeding with less than that number, unless both the prosecutor and the accused consent. There has obviously been much discussion in common law jurisdictions relating to majority verdicts, and I guess the locus classicus of the argument in favour of majority verdicts is based on the judgment of the English Court of Appeal in a case called R v Walhein. It was in that decision that the court said: "It makes for great inconvenience and expense if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest." A second justification for majority verdicts would be that such majorities help to prevent jury nobbling. It must be a matter of concern to all politicians, no matter what their political philosophies might be, that the rate of hung juries has continued to rise. The number of hung juries has risen from 3 percent of trials in 1993 to over 10 percent between January and August 1999. Those figures, which come primarily from the Law Commission in its preliminary paper, are the latest figures that I am aware of. In that preliminary paper, the Law Commission said in part that it was of the view that: "If current rates of hung juries are substantially maintained or increased in the period prior to publication of our final report, majority verdicts should be introduced." My personal view is that the Government's proposals of 11:1 need to be looked at critically, and I would favour a majority balance of 10:2. In the one illustration that the previous speaker gave, he spoke of the United Kingdom arrangements, which are 10:2; and looking at what is going on in common law jurisdictions, the United Kingdom is 10:2, Northern Territory is 10:2, Tasmania is 10:2, South Australia is 10:2, Oregon is 10:2, Hawaii is 10:2, Alaska is 10:2, and so it goes on. I am aware, however, that Victoria has opted for the 11:1 proposals of the New Zealand Government. So on that issue relating to majority verdicts, I would express the hope that the Law and Order Committee will see the merit of a 10:2 proposal. The second issue, which I judge to be highly controversial, relates to creating exceptions to the double jeopardy principle. I have to say that in respect of the second exception the Government proposes to embark upon, we are in danger of pursuing criminal adventures for all the wrong reasons. The principle of double jeopardy is straightforward. It is to ensure that no person is retried for an offence of which that person has already been acquitted. This bill proposes two changes to allow two exceptions to that well-understood principle. The first exception is where evidence is tainted through perjury or witness intimidation, and if there are to be exceptions made to the principle, then that is probably an area where an exception is justified. It is in the area of the second exception that I take strong objection. That second principle concerns the case where strong evidence of guilt is established after a person has been acquitted for an offence punishable by imprisonment for 14 years or more. There are a number of problems with creating that exception. It may, perhaps, be justified on a populist basis. The reality, however, is that the legal system is not a perfect system, and balances in the system have to be constantly sought. Double jeopardy ensures that the powers and resources of the Crown are not abused, and that prosecutions are brought only where there is clear evidence of wrongdoing against an accused person. To try to justify the exception, the Government has built in a number of protections in the bill. One is when a case has gone to the Court of Appeal, and the Court of Appeal has formed a view that there is compelling evidence of guilt against the accused person. I have a real concern as a lawyer that if that exception is 14216 Criminal Procedure Bill 29 Jun 2004 maintained, it will be virtually impossible for an accused person, following that adverse finding of the Court of Appeal, to have a fair trial. The injustice of it is apparent, because the Court of Appeal does not see and hear the witnesses. The reality of Court of Appeal hearings is that they are conducted on the papers. We will have a situation in which, without seeing or hearing the witnesses and without an opportunity to test the evidence in any real way, an accused person will have to face the prosecution against the background of an adverse determination of guilt or innocence. We need to look at that exception very critically. DAIL JONES (NZ First): This bill has a number of very important issues, from the point of view of criminal procedure. New Zealand First will support it to the select committee, but we do have reservations about it. The National Party spokesman for justice set out a number of issues very clearly. He was especially concerned about the second exception relating to compelling new evidence for double jeopardy. We well know that in a criminal case, people often bankrupt themselves to try to defend themselves against charges. If a person has spent all his or her money to defend him or herself based on the evidence produced by the Crown, and then the Crown says, later on, that it has some new evidence and it wants to go through all that again, that person has no money, and while he or she might get legal aid, he or she might not get the lawyer he or she really wants and might not be able to afford the lawyer who got the person off on the first occasion. So there are problems with the double jeopardy principle, and it will be interesting to see what happens in the select committee. I had hoped that the bill might go to the Justice and Electoral Committee, because there are a number of complicated legal issues involved. Perhaps a Labour member might comment on that possibility. The area about which New Zealand First is greatly concerned and has objection to is Part 5. The trouble we have today with legislation is that the law drafter is ordered by the Government to throw a lot of issues together, and they all get put in one part, even though one might agree with some and disagree with others. If the areas to which I will refer are not removed from Part 5, then we may have to vote against Part 5 as a whole, but we will look at that situation after hearing the evidence in the select committee. The area about which we are particularly concerned is the one relating to preliminary hearings. The Government intends to abolish preliminary hearings. The only justification it can come up with is a statement by the Law Commission that found that the main purpose of preliminary hearings—to act as a filter for unmeritorious cases— was not being served, because the lay justices of the peace before whom they are usually held may feel unqualified to put an end to a case. I have appeared in preliminary hearings, or "deposition hearings" as we lawyers call them, and I have never had the difficulty, in a deserving case, of having the matter struck out by a justice of the peace on the basis that there is no case to answer. I do not accept the Law Commission's view. I believe that preliminary hearings must continue as they are today. That is my personal view, and I will be looking at the submitters' views with interest to see whether people who practice at the bar share the view of the Law Commission. I wonder how many members of the Law Commission have actually appeared in a District Court on deposition hearings. I remember when I got back into practice in 1984 one of my first cases was to have an indictable offence thrown out because of poor evidence against a couple of clients. I have had a deposition hearing tossed out on an arson case, where the police had called out the armed offenders squad, so the witnesses were the police, yet the JPs had no difficulty in throwing out that particular charge. I believe there is a strong place and a strong case for deposition hearings to continue. 29 Jun 2004 Criminal Procedure Bill 14217 If a lawyer tries to defend a case at the deposition hearing and has it tossed out, that saves the Crown a lot of money. It prevents having a lengthy jury trial with a judge— possibly a judge of the High Court—it prevents having to call in 12 jurors, and it prevents the case taking the weeks that a jury trial can take. In deposition hearings that are obviously cut and dried, and where there is a case to answer, on today's basis most lawyers will hand up the charges and evidence, and that is the end of it. But lawyers may want to check out a witness at a deposition hearing, and it is a useful forum to see whether the Crown's witnesses really stack up and whether the evidence stacks up. It is often useful for the prosecutor to find out whether the prosecution witnesses can stand the pace of a High Court hearing or a District Court jury trial hearing. So I think for the Crown to dismiss preliminary hearings in the way in which it has in this legislation is an adverse effect of it, and that the matter should be reconsidered. I would have thought that perhaps the Justice and Electoral Committee would be the committee that would best understand what is involved here. There is clause 88, "Defendant's right to elect trial by jury where offence punishable by more than 3 months' imprisonment". Today, when the defendant goes in the box and fails to enter a plea of "Guilty" or "Not guilty" and how he or she wants to be tried, usually the Crown has to go ahead with trial by jury. Here, the whole situation has been reversed from what has been the norm for many years in New Zealand. I will be interested to see what happens with regard to clause 88. Another issue is Part 5A, "Special provisions relating to standard committal process and committal hearings in cases of sexual nature". This provision is inserted by clause 92, which is in Part 5. It is an area that we might not oppose, depending on the evidence, but on the face of it, it goes entirely against all the principles of New Zealand justice. It provides that a complainant must not be examined or cross-examined on a statement provided at a committal hearing. There are all sorts of protections given to complainants these days. So often the evidence, when it comes under scrutiny, falls apart—which is a reason for a pre-trial or deposition hearing. To have a complainant go to a deposition hearing and, through a standard committal process, make a statement without any degree of examination—not even by the prosecutor, let alone by the defence counsel—means that we are going down a dangerous path. Again, as I said, we are talking about the committal process only, and I will be interested to hear what submitters have to say on that aspect. My colleague Mr Brown, the deputy leader of New Zealand First, will be seeking a call on that in order to speak on an issue that is close to his heart. At this stage New Zealand First supports this bill to the select committee, although we have grave reservations about Part 5. NANDOR TANCZOS (Green): Last night the Green Party split its vote on the Parole (Extended Supervision) and Sentencing Amendment Bill because while we had strong concerns over the New Zealand Bill of Rights Act implications of that bill, most of us felt that the infringement of the New Zealand Bill of Rights Act was justifiable. There was clear evidence of an immediate problem that was quantifiable and there was compelling reason for change in terms of the significance of the problem that the bill was trying to address. I mention that bill only as a comparison with the current bill that we are looking at, because in this case I do not think we can see clear evidence of a current problem that needs to be addressed in urgency. Nor do I think we see evidence of the kind of seriousness of the problem that can be compared at all, so because of that, the Green Party will not be supporting this bill through the first reading. That does not mean that we may not be able to support it at a later stage if significant amendments can be made to it, but certainly we do not feel able to support it at this point, because we do not think the evidence is there. 14218 Criminal Procedure Bill 29 Jun 2004 This is an omnibus bill. Of course there are a number of provisions— Dail Jones: What is it that you are opposing? NANDOR TANCZOS: The bill. Dail Jones: Entirely? NANDOR TANCZOS: That is what my speech is about to outline. The member is quite right—this is an omnibus bill; there are a number of provisions in it, and many of them are actually very good. We support many of these provisions and it is unfortunate that the Government seems to have an increasing tendency to put in omnibus bills, which means there are so many different provisions in there that we are constantly having to weigh up: "Is it so bad, that we cannot support the good stuff?". That is not a proper way to conduct the business of this House, in our opinion. The first thing I will speak about in the specifics of the bill is the double jeopardy aspect because it is a serious issue. Unlike the Parole (Extended Supervision) and Sentencing Amendment Bill that we discussed last night, which some claimed comprised double jeopardy but could be seen not so much as double jeopardy but more in the nature of a double punishment, what we are seeing with this bill is quite clearly actual double jeopardy—that is, people who have been acquitted in a court of an offence are being retried for the same offence. Now there is a case to be made in some way and we have some sympathy for some of the things the bill is trying to achieve in this regard. The bill creates two exceptions to the double jeopardy rule. The first one is where someone was acquitted because of committing an administration of justice offence such as perjury or intimidating a witness. And we do have some sympathy for that point of view, if it is clear that someone was acquitted because that person threatened a juror, for example, and that led to a false verdict. That is a problem and does need to be addressed. We looked at whether there were other ways of addressing that problem: should we strengthen the perjury provisions, for example? Of course, it is not possible to come at all of the cases in that way, because, first of all, many of the offences committed to get the acquittal would not have been committed by the person on trial. These offences would have been committed by friends or associates, and prosecuting someone for perjury does not necessarily address the problem of the wrongful acquittal, The other thing, of course, is that if someone is acquitted of a murder charge, to use the perjury laws to get at that person the offender will have to be sentenced to the kind of sentence that he or she would have received had he or she been found guilty of murder. What we are then doing is effectively sentencing such offenders for something that they have not been proven guilty of, and that would be even more improper. So we cannot get at it that way, and we do have some sympathy with that part of the double jeopardy rule. We have more concerns with the second part where reference is made to compelling new evidence becoming available. We have to accept that technology moves on. It may be that in 5 years' time some amazing new technology is developed that was not available at the time of the case, and it is able to prove that someone was guilty of the offence, but this provision is not limited to new technology. This provision is actually quite broad in the sense that it contains few safeguards. It just talks about "fresh and compelling evidence". Well, what does that actually mean? I think Mr Goff has tried to take some of the concerns seriously and has tried to put some safeguards around it. There is going to be only one trial, the Solicitor-General must consent to police reinvestigation, and then they seek leave to the Court of Appeal to reopen the case. The Court of Appeal must then decide that there is compelling new evidence, and Mr Goff says that the evidence must be unable to have been discovered with the exercise of due diligence. So I think that is an attempt to put in safeguards; nevertheless, 29 Jun 2004 Criminal Procedure Bill 14219 the Green Party does not believe that they are adequate to safeguard against the problem that the bill provides a strong incentive for the manufacture of evidence if someone has been committed of an offence. It is not a theoretical thing. We cannot say: "Oh, the New Zealand Police never do this." Most officers never do that, but we have examples in the history of this country where evidence has been manufactured, and we have to take that seriously. In the opinion of the Greens we would be wrong as a Parliament to create incentives for the manufacture of evidence. The other thing is that there is no evidence that this is a compelling problem. Where is the evidence that people are being acquitted on the basis of these things and that we have such a problem with it that a law needs to be passed that contravenes the longstanding principle against double jeopardy? In our opinion the evidence is just not there. The other thing I would like to talk about that was also very strongly opposed in our caucus is some of the provisions around jury trials. Some of the provisions are actually very good. Some of them simply relate to making juries more effective. For example, we strongly support things like increasing jury district boundaries, increased penalties for failing to answer a jury summons, and provisions to defer service for up to 12 months. I have been called up for jury service twice in my life, once during my university exams and once a couple of days after I had been elected as a member of Parliament. I was quite disappointed because I would have enjoyed doing the jury service. Hon Ken Shirley: Not eligible. NANDOR TANCZOS: Exactly, not eligible. I saw it as a responsibility as a citizen of Aotearoa to do that. It would have been extremely interesting and informative to take part. When I was doing my exams I would have liked to defer my jury service so that when my exams were finished I could have done it at a later time, but that was not possible. So I think it is good that people can defer service. It is an offence to prejudice an employee by reason of that person's absence on jury service. The other thing we think is extremely good is allowing the prosecution and defence expert evidence to be heard in sequence where that would better assist jurors to understand the case, so that jurors do not have to follow an extremely complex argument through to the completion of all the evidence, then hear the other side, with the serious possibility of becoming confused about what point was what, and so on. So there are a number of good things in the bill, but we strongly oppose, first of all, the move to majority verdicts. Notwithstanding the lengthy list of mostly American states that Mr Richard Worth read to the House, we think that majority verdicts will lead to quicker, but not necessarily better, justice. Now when one juror has a strong reservation about a guilty verdict, the jury has to listen to that person, work through the issues, and either convince that person of the correctness of a guilty verdict, or it may well be, and it does happen—and there is experience of this in our caucus—that a single juror says that it is not right, that there is something wrong, and manages to bring around a majority of the jurors to conclude that a not guilty verdict would be appropriate. There is no incentive to do that with majority verdicts. The majority of the jury will just go: "Oh well, we will wait 4 hours, then it is all over. We don't have to listen to you." The Greens think that that is a bad move and we do not think we should go that way at all. The other thing we are extremely concerned about is the ability to have trial by judge alone, in long and complex cases and where there is evidence of jury intimidation. Jury intimidation is when there is evidence that there is, has been, or may be, jury intimidation. That is extremely broad. We think that this issue is a real problem and that 14220 Criminal Procedure Bill 29 Jun 2004 this is not the way to deal with it. We think the changes to depositions are something we should support. So overall it is a mix of things. It is unfortunate that we have to oppose the good things because of the things we do not support, but we will not be supporting this bill through its first reading. Hon KEN SHIRLEY (ACT): The ACT party will be supporting the Criminal Procedure Bill. However, the first observation I would make is to ask why we are debating this bill under urgency. There is nothing urgent about it. It has some relatively minor and quite significant points, but it could have been dealt with in the normal procedure of the House. I also observe that the Government pulled the plug early yesterday for the lunch break in urgency. It could not go through to 1 o'clock, because it did not have enough on the agenda. Last night it tried to pull the plug early, at about a quarter past 11, but the ACT party denied it leave to do that. If the Government is to put the House into urgency, it should do so because it is serious and it actually has a backlog of urgent matters that need to be cleared. Clearly, the Government is in disarray in terms of its procedures. It brings matters of minor consequence to the House and then throws them into urgency, for no good reason. That is just bad management by Government. The other observation I would make in relation to this bill—and it has already been made, but I reinforce the point—is that Part 5 has a wide range of ad hoc matters, some of which are reasonable, but others are quite unpalatable. The point is that there has been a tendency in drafting, particularly with this Government, to group and amalgamate a whole range of matters into one part, and then under urgency debate the bill part by part to try to save time. I believe that that truncates the right and obligation of the Parliament to debate those issues, many of which are stand-alone issues that should not be amalgamated in that way. Perhaps the reason this Government is ramming this stuff through in urgency is that it does not want to stand up to the scrutiny of those detailed matters. The ACT party certainly does have concern with the proposal to replace unanimous jury verdicts with majority verdicts. We believe that that could well erode safeguards against wrongful convictions. We welcome some of the changes, but others could well erode key rights that protect defendants, if the establishment decided to gang up on them—and regrettably, it does. Judith Collins: Like Nick Smith. Hon KEN SHIRLEY: That may well be a case in point. Often the establishment does want to protect its patch, and it will gang up. There are some disgraceful examples where the establishment has ganged up. That is the point of having jury trials where peers can stand in judgment, and the establishment can be exposed if it is colluding and ganging up in the way in which it presents the case for the prosecution. The other concern—and it runs in parallel—is the prosecution's ability to get a judge-alone trial, instead of a jury trial, by alleging a threat of intimidation; this is the mechanism the Crown can use, and it is an ability that could well be misused. That is the concern. The establishment could well push for a judge-alone trial, bypassing that judgment by the peer group, which goes to the very foundation of our justice system. The issue has been raised with regard to intimidation. On many occasions in this House the Minister has given the example of the person who literally got away with murder on the basis of intimidation. But there are other ways that we could have dealt with that. One good way would be to make the penalty so severe that it is simply not worth it. The risk would outweigh any benefit associated with that sort of behaviour. If the Minister of Justice, Phil Goff, were truly serious about dealing to offenders who corrupt justice, he would have to get rid of the so-called right to silence that lets criminals make their lawyers peddle fanciful theories and they are safe from being 29 Jun 2004 Criminal Procedure Bill 14221 cross-examined. We put to the Minister of Justice, Mr Goff, that if he were truly serious he would do away with the provision that allows a defender to declare silence and then his or her lawyer just puts up a whole range of fanciful scenarios—knowingly fanciful, in the knowledge that in those circumstances a defender cannot be cross-examined on the veracity of the issues being put up. The risk with majority verdicts is worth running. In complex and lengthy cases, and where the prosecution alleges threatened intimidation, the end to the right to a jury trial will be tempting for justice authorities where they think that a jury might refuse to convict. Jury trials have been a safeguard with unpopular law, or where the jury thinks the Government is abusing prosecution powers. Those possibilities are justification for protecting the ancient right to a trial by one's peers. I have expressed a number of concerns the ACT party has with this legislation. However, we are prepared to see it proceed to a select committee where we hope that full scrutiny will be given. MURRAY SMITH (United Future): It may come as a surprise to members to learn that the New Zealand legal system is not founded on the pursuit of truth. In other words, the New Zealand legal system is not founded on the necessity for our courts to determine, as far as they can, whether a person actually committed a crime, before determining what punishment, if any, is appropriate; or in a civil dispute, everything relevant that happened between the parties, before deciding who is in the right. Whether people are surprised by that statement depends on how close an involvement they have had with our courts. The statement will not surprise lawyers, judges, and most people who have been required to participate in our justice system. Those who earn their living from participation in the courts system are well aware that the discovery of truth is no more than a hopeful by-product of the justice system, and not central to it. Many New Zealanders who have appeared before courts, either as defendants in criminal or civil cases, or in seeking to obtain the assistance of the court to enforce their rights, have come away frustrated and disillusioned at the inadequacies of the court system, solely because they had an expectation that the court would make a decision that was based on the truth. But instead, they have found that that decision has been based on half-truths, impressions, sympathies, and above all else, a rigid adherence to the semantics of legislative wording. On 3 August 1994, TV3 aired a documentary in its Inside New Zealand series that looked at the criminal jurisdiction of the District Courts. In the course of the programme the then Chief District Court Judge, and now Ombudsman, Anand Satyanand, stated: "It is not my role to discover the truth." Rather, he said that the judge's role was to consider the evidence that was placed in front of him or her and decide whether the evidence was sufficient to prove the commission of an offence, in terms of a strict analysis of the wording of the relevant statute. In other words, the dispensing of justice in the criminal court system is a technical exercise in which the prosecution is required to prove each ingredient of an offence and the defence counsel role is, in essence, to show that the prosecution has failed to do so. For that reason no one is ever found innocent—that is, found that he or she did not commit a crime. He or she is found not guilty. This is an important difference. "Not guilty" means that whether he or she did it or not, guilt has not been proven. Accordingly, in the very first criminal case that I was involved in as a defence lawyer, my client was accused of hunting without a licence. The regional authority that was prosecuting him overlooked presenting evidence to the court that the land on which my client was found with his gun was public land—an essential ingredient of the offence. I moved for the charge to be struck out on the basis that an essential ingredient 14222 Criminal Procedure Bill 29 Jun 2004 had not been proven. That was granted, and my client was free, irrespective of whether he had actually hunted without a licence. Accordingly, it is quite consistent within our adversarial system for a person to be acquitted of a crime, even though he actually "did it". In fact, the concept of "did it" suggests that he was guilty of committing a crime, and he is not guilty unless the police can prove he "did it". If they cannot, he is "not guilty" and is acquitted—that is, freed or released from charge. As I said, our system never declares a person innocent. So when we come to this bill, we see that the Government is tinkering with a criminal justice system that has much more fundamental problems. In our criminal justice system, everybody has the goal of seeing people who commit crimes getting convicted, and people who are wrongly accused getting acquitted; also, they want the system to run efficiently, both in terms of time and cost. This bill seeks to make some adjustments to our flawed system in order to try to improve those things. In terms of juries, the bill addresses the problems we have of a reluctance of people to serve as jurors and also the problem of the rogue juror—the one in 12 who, for whatever reason, apparent or hidden, will not agree with the other 11. Chiefly, in that regard, the bill provides for majority verdicts, for dispensing with jurors in cases of complexity, for increasing the catchment area for jurors, for increasing penalties for jurors who do not turn up, for allowing jurors to go home at night during trials, and for allowing jurors to defer jury service. Those things are mostly non-contentious. The dispensing of jurors is a contentious point, but, as I said, the Government is really just tinkering in that sort of area. With regard to deposition hearings, the bill provides for a speeding up of the trial process and for a freeing up of court time. Deposition hearings will be conducted on the papers instead of having the current situation whereby oral evidence is presented, unless a judge agrees otherwise. Currently, depositions serve as a bit of a test run as to the reliability of the Crown evidence, and that goes back to the fundamental comment I made, that a person is entitled to an acquittal if the police cannot prove he or she "did it"—whether it actually happened or not. However, defence counsel have at times found that the presentation of oral evidence—in particular, the ability to cross-examine intended Crown witnesses—has revealed information that should have been disclosed by the police but was not. For example, I have been cited a case where a defence attorney said to the Crown's witness: "What did you do next?", and he said: "Well, I made some notes and gave them to the police." The question has then been: "What notes?", because the police have not disclosed what was absolutely critical information in terms of notes made at the time. So that has been an area where oral evidence has managed to serve to elicit factual information that should have been disclosed to the police. The bill does provide some help for the defence in that regard. However, under the bill the police will have to disclose all relevant evidence. At present the police have to disclose only what they are asked for, and it is actually a technical and key exercise for defence counsel to make sure that they provide a broad request to the police so that the police actually give them everything relevant to the case. However, there are still times known where the police have conveniently lost, or simply denied the existence of, evidence that is later proved to exist. Therefore, at least a compulsion on the police to disclose all evidence, although that will add to a lot of time and cost on the part of the police, will, to some extent, redress what we are taking away from the defence in the area of oral depositions. The area of double jeopardy has been dwelt on already by previous speakers. Certainly, in terms of tainted acquittals, United Future is happy that if a person corrupts the system, he or she should not benefit from having done so; and it is legitimate to look 29 Jun 2004 Criminal Procedure Bill 14223 at a situation of retrying the process because of the corruption that has been demonstrated to have occurred. The "subsequent evidence" rule, however, is problematic, and we have some real doubts about that. But we are happy and willing to listen to the submissions that come, and we will do that with interest before we make a final decision in that regard. I come back to the point, that we really need to look at the root causes of our justice system, and in particular at the whole adversarial system we have constructed. United Future believes—and I in particular believe—that we need to move more towards an inquisitorial type of system, as we have already done in terms of inquiries, tribunals, and even Family Courts. The Care of Children Bill is a case in point. There are three effective things I think we can do in order to move towards that. First, we should make establishing the truth a priority of both judges and courts— refocusing the judges, and thereby the system, on what they ought to be doing. Secondly, I think we should strengthen judges' ability to call for evidence to be presented so that judges can, when they see a gap in the evidence, take more positive steps towards ensuring that all the evidence that ought to be presented before the court is presented, in order that they can get to the truth. Thirdly, I agree with the ACT party—and I am very pleased to see its members supporting what I have been arguing for a number of years—that we should require defendants to give evidence and allow a negative inference to be taken if they do not do so. I think that would dramatically speed up our process. We would have a lot fewer situations whereby defence attorneys run a case, even though their client "did it", just to see whether the police can actually prove it. There would be a lot less of that happening, saving considerable time and expense. United Future will support the first reading of this bill and enable the select committee to examine the issues contained in it. However, until we stop tinkering with the system and take a radical look at its fundamentals, we will never get to a stage where we can confidently say that people who commit crimes will invariably be convicted, and that those who are wrongly accused will invariably be acquitted. JUDITH COLLINS (National—Clevedon): The National Party will support this bill through to the select committee. However, we understand that the Government wants to send it to the Law and Order Committee—am I right, Minister?—rather than to the Justice and Electoral Committee. We are a bit concerned about that, because we believe it should go to the Justice and Electoral Committee. This is an issue of juries and judges. It is absolutely appropriate that the bill go to that committee rather than to the Law and Order Committee, which deals with police issues and things like that. The choice of committee is wrong. I have an idea how we can get time in the Justice and Electoral Committee to deal with this bill: we will swap this bill for the Civil Union Bill, because if it is appropriate to send the Criminal Procedure Bill through to the Law and Order Committee, then I am sure it is just as appropriate to send it the Civil Union Bill. I can hear "Hear, hear!" all around from members of the select committee—except for Mr Barnett. Mr Worth has very correctly pointed out that we are quite supportive of having majority verdicts in jury trials. We are concerned to make sure that people do not nobble juries—that juries do not have a rogue element that will not be convinced either way and simply not look at the issues. But I am confidently assured by many of the people who practise in the criminal law area—as lawyers, hopefully, not as criminals—that the ability of juries to look through all the gloss, the spin, and everything else and at the substance of what they are hearing is often underrated. I think that we in New Zealand perhaps underrate juries significantly, and to our peril. In most cases, people come to juries wondering what they will find and what will 14224 Criminal Procedure Bill 29 Jun 2004 come from the experience. They are very concerned to do the right thing. I have been told by those who are involved in this area that juries invariably come to the right decision, and that they take their roles very seriously. I note the comment made by the Green Party member, who said he had two examples of when he could have been on juries, but that examinations and his coming into Parliament unfortunately prevented him from doing so. I think that jury service must be very much like a conscience issue in Parliament, where everyone is trying to do the right thing according to what they think is right, and not according to any party line. We do underestimate the role of juries and their abilities in most cases to come to a verdict. Mr Worth pointed out that there has been a substantial increase in the number of hung juries, and that is perhaps something to do with the fact that police resourcing is not as good as it should be, that there is a genuine concern that the police are not always producing the right standard of forensic work, and that there is some sort of concern in the community that the police are not as highly valued and viewed as they once were. There has been a general downgrading of police morale, and perhaps that can be seen in what happens with these verdicts. We understand that there is a concern over gang-related crime. I can recall at least one crime that occurred in Taranaki where a person literally got away with murder because of intimidation of witnesses and a jury. Of course, that one instance does not mean to say that this happens all the time, so therefore we need to tread very, very carefully with that issue. We are concerned about the double-jeopardy provisions in the bill, as Mr Worth said. We are particularly concerned with the second exception. In relation to the second exception, the explanatory note states: "… compelling new evidence. It will apply to persons previously acquitted of very serious criminal offences if reliable evidence is subsequently discovered that was not available at the time of the first trial and indicates with a high degree of probability that the person is in fact guilty." That says to me that if anyone is prosecuted using this exception any jury or judge will know from the start of the prosecution that there is reliable evidence, and a judgment has already been made that the evidence is reliable, which is a judgment that is best made by the jury. So that judgment is being taken away from the jury. The second thing is the fact that the bill states: "… indicates with a high degree of probability that the person is in fact guilty." So a judgment is already being made before the jury gets to look at it. The jury is placed in the position of looking at this instance and saying: "If I don't think this person is guilty, clearly I am wrong." I can see this as a State-sanctioned form of jury tampering—in fact, a bullying of the jury into not going with its own reactions and feelings on what it is seeing. For instance, if jury members see a prosecution witness giving evidence, and in their opinion the person is telling a barefaced lie, under this sort of provision people would be saying to themselves: "Perhaps I've got it wrong. Perhaps that person is not telling a barefaced lie. Perhaps the body language does not indicate that.", when the jury member should rightly be going with his or her own feelings on the matter. Another comment in the explanatory note states: "The basis for the compelling new evidence exception is the importance in the interests of justice (and particularly victims' interests) of achieving factually correct verdicts in very serious cases...". Those of us who have been around the legal profession for a long time know that there are at least as many sides to a story as there are people to tell it. What is a fact is very much a subjective matter, because it depends very much on how someone sees it. We have consistently shown over the years that the evidence of people identifying someone from a particular crime scene, or saying: "I know that that was the person. I saw him or her", is incredibly unreliable. After a period of time, most people do not remember quite what 29 Jun 2004 Criminal Procedure Bill 14225 they think they saw, and that is something we need to be very careful about. That is where DNA testing has been able to really improve the situation. In essence, I am pleased to be able to support this bill through to a select committee. I make a last-minute plea to have this bill transferred to the Justice and Electoral Committee—in my opinion, the appropriate committee to examine this bill—and that the issues the National Party has raised are taken into account in a serious way. PETER BROWN (Deputy Leader—NZ First): I apologise for being a little slow to my feet, but I expected a Government member to get to his or her feet. It disappoints me that on a bill that has so much meat in it, we have had only one contribution from a Government member—the Minister. As my colleague made clear earlier, New Zealand First will support this bill to select committee. We believe that there is some good stuff in this bill that, at the very least, needs to be aired in public and to receive public submissions. Having said that, the Minister has the wrong select committee. I agree totally with my colleague Dail Jones that this bill should go to the Justice and Electoral Committee, not to the Law and Order Committee. This is a technical bill about law, and it should more appropriately be put before the Justice and Electoral Committee. I sometimes wonder how the Government makes its decisions along those lines. I also agree with my colleague, as do all New Zealand First MPs, who expressed concerns about the abolishment of deposition hearings. I am not a lawyer, but I realise—certainly after listening to Dail Jones in caucus in particular—that they play a very prominent and significant part in a fair criminal trial procedure. We have major jury reservations about that. I tend to agree with the Hon Richard Worth, who said that a majority verdict would be better if it was 10:2, rather than 11:1. We are following the British very much in this bill, and my understanding is that the British have gone to a majority jury verdict of 10:2, as against 11:1. That is my personal view, but, again, I welcome that issue being addressed by the select committee. There are certain elements in this bill that really please me no end, and I think my colleague alluded to them earlier. There are three areas of concern to me—two are included in the bill, but I cannot find one of them. I have had an interest in British justice for quite some time and have been following it through newspapers and the Internet. After the completion of the Commonwealth Parliamentary Association conference last year I took a week's leave and spoke with justice officials in the UK about various aspects of law and order that the British were looking at. One issue the British were looking at was the exception to double jeopardy. On my return here I produced a member's bill, called the Crimes (Criminal Justice) Strengthening Amendment Bill, which addresses that issue and a couple of other issues. I am firmly convinced that the exception to double jeopardy should be introduced. This bill provided for it, as indeed did my member's bill. It should be introduced for serious crime only. We are not talking about petty thieves or the person who has done something relatively minor. We are talking about people who could get a prison sentence in excess of 14 years. It is serious stuff. Parliament has an obligation to ensure that people who commit serious crimes are apprehended and do the time. The old saying: "Do the crime; do the time" is appropriate. One of the two areas that would allow for the exception to double jeopardy to click in is "compelling new evidence". I suggest that basically we are talking about compelling new scientific evidence, such as DNA. It is appropriate to use that evidence, even if the person got off the charge before it was available. Obviously, as Judith Collins stated, it has to be used fairly and honourably, but if we can get compelling new evidence against a person who has committed a serious crime, then the State has an obligation to use it. 14226 Criminal Procedure Bill 29 Jun 2004 Murray Smith referred to corruption of the system—that is, where a juror, a witness, or someone else has been bribed or perjury has been committed. It is only right and proper that that issue is addressed. First of all, of course, the police and the prosecution will have to prove that the person was guilty of perjury. They can then use that evidence against the "main criminal", for want of a better term. So I am pleased that that is in this bill. I am also pleased that this bill provides for the full disclosure of evidence, both from the prosecution and to a larger extent from the defence. I am not a lawyer but it appears to me, and I know it appears to many members of the public, that there have been too many people—lawyers and accused people—who get off charges because of what I would term the smart alec use of the law. This legislation, I believe, will go some way towards closing that off. I do not know whether it will do it totally, but I think it will close it off to some significant degree. A third aspect that is in my bill—but I cannot find it in this bill, although I hope it is there somewhere—is that in certain trials the judge should be able to divulge to the jury the relevant criminal history of an accused. The British are looking at that—in fact, they are introducing it as I understand it, and I think it is appropriate that we bring it in here. I believe that this is a good opportunity to tighten up our justice system and to do our very best to ensure that those who are guilty of crime, particularly serious crime, pay the price. I believe that we have to get it right one time over. Judith Collins referred to the morale of the police. She implied that the low morale suffered by the police is because of the criminal justice system. That may be true in part, but equally true is the fact that the police are suffering from low morale because far too often far too many of them have to go out on the road and get a quota of guilty motorists, for want of a better term. They have to go out and fine motorists. I know that the police are getting very, very poor feedback from the public. If we are going to tidy up the law, I think we should tidy up that particular area of it. We in New Zealand First believe that traffic duties should be carried out by a separate force, administered by the Land Transport Safety Authority, or whatever. Hon Judith Tizard: Why did Winston Peters vote to amalgamate the traffic police and the police? PETER BROWN: The honourable member asks me a question. I was not here at the time, but I can tell her— Hon Rick Barker: Ask your leader. PETER BROWN: I am trying to answer the member's question. I think it is a fair question. If the honourable member did do that—and I am not doubting the member's word—he was a member of the National Party at the time. But since late last year we have surveyed many people, and we are told that that is the wrong way to go. We want to relook at the issue and split the police from the traffic officers, but it will not be done in this bill. I do not really want to encourage debate on that issue during the debate on this bill. The point I am making is that this bill tightens up our legal system, and we need to tighten it up fully, including in relation to our concerns about aspects of policing in this country. New Zealand First will support this bill's referral to the select committee. 29 Jun 2004 Criminal Procedure Bill 14227 A party vote was called for on the question, That the Criminal Procedure Bill be now read a first time. Ayes 109 New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. Noes 9 Green Party 9. Bill read a first time, and referred to the Law and Order Committee. ANIMAL PRODUCTS (DAIRY PRODUCTS AND OTHER MATTERS) BILL First Reading Hon DAMIEN O'CONNOR (Associate Minister of Health), on behalf of the Minister for Food Safety: I move, That the Animal Products (Dairy Products and Other Matters) Bill be now read a first time. This bill provides for the regulation of the dairy industry under the Animal Products Act and repeals the Dairy Industry Act. The dairy industry is New Zealand's largest industry. For the year ended 31 May 2003, dairy and casein exports were worth $5.81 billion to the New Zealand economy. There are over 14,000 dairy farm suppliers, 188 registered dairy factories, 285 registered stores and transporters, and 473 registered dairy premises. The safety and trade of dairy products currently comes under the Dairy Industry Act. That Act does not provide an adequate legislative framework for ensuring product safety outcomes or an adequate legislative framework to facilitate trade in a risk-based management environment. The prescriptive and inflexible style of the Dairy Industry Act is inconsistent with the enabling style of legislation that has been used in modern risk-based legislation, such as the Animal Products Act. There are two overarching public policy objectives for the bill: firstly, to manage risks to human and animal health from the consumption and use of dairy products; and, secondly, to facilitate the entry of dairy products to overseas markets. The proposals in the Animal Products (Dairy Products and Other Matters) Bill were first made available for public consultation in July 1999 with the release of a public discussion paper. It was distributed to a wide range of stakeholders, including dairy producers, exporters, manufacturers, farming groups, consumer groups, Māori, and Government departments. A further discussion paper was released in February 2001, and consultation meetings were held during March 2001. Consultation has been ongoing since then on transitional and implementation matters. Currently the Animal Products Act exempts material or product that is dairy produce. The bill removes the exemption of dairy produce, along with making a series of amendments that reflect the current risk-based management requirements under the Dairy Industry Act. These include adding definitions of dairy processor, dairy material, and dairy product, and providing that, unless exempted, all dairy processes must operate under a risk-management programme. The bill will provide for a seamless transition between the Dairy Industry Act and the Animal Products Act. It provides for a new legislative framework that is consistent with the enabling style of legislation used in modern risk-based legislation. It will deem all product safety programmes under the Dairy Industry Act to be risk-management programmes under the Animal Products Act from the date of commencement, which I anticipate will be 1 January 2005, not 1 July 2004 as stated in the bill. This will mean that all dairy processes—from the milking shed, the farm dairy, up until the dairy product is exported or sent to retail—will now operate under a risk-management 14228 Animal Products (Dairy Products) Bill 29 Jun 2004 programme. This will ensure that product safety outcomes in the dairy industry are provided for in the risk-based management environment. On these grounds there will be little change for operators in their day-to-day business functions. The bill also enables the Governor-General, by Order in Council, to exempt dairy material, dairy product, or dairy processes from all or parts of the Animal Products Act if certain criteria are met. Exemptions would be given only when the risks are managed under other legislation, such as the Food Act or the Agricultural Compounds and Veterinary Medicines Act, or where the known risks are negligible. There would be minimum compliance costs associated with the bill. For the majority of the industry the technical requirements will remain the same, and this will mean very little change in costs. The bill provides for other matters that amend the operation of the Act. These include amendments to export requirements, the conditions that can be applied to risk- management programmes, and the requirements for multibusiness risk-management programmes. It is also my intention to introduce a Supplementary Order Paper that further amends the export requirements, to correct a deficiency that has recently come to light. I propose that the Animal Products (Dairy Products and Other Matters) Bill be considered by the Primary Production Committee. Although I have not spoken to each provision of this bill in any detail I believe I have indicated that it is a logical step forward in the development of generic legislation rather than industry-specific legislation. The bill repeals outdated legislation and provides a flexible means for managing current and potential risks posed by dairy material and dairy product. I commend this bill to the House. Dr LYNDA SCOTT (National—Kaikoura): The Animal Products (Dairy Products and Other Matters) Bill is one of food safety, which is why I am speaking on it today. The National Party will be supporting this bill. As the Minister has just said, wide consultation has been undertaken, and that consultation began under the National Government in 1999. The dairy industry is supportive of the changes that are being made that change the regulation by repealing the Dairy Industry Act, and bringing the regulations of the dairy industry under the Animal Products Act. I suppose it is interesting to look back at the history of food safety when it relates to dairy industry products. If we turn our minds back to the past and to the fact that cattle and dairy products can pass on TB, we recall that it was back in those days that we began the pasteurisation of milk. TB in animals is a major cause of disability and death for people in many parts of the world, and those parts of the world that do not have pasteurisation, which was one of the first steps in improving food safety, still have the spread of TB via that role. So we must not forget how important it is to have good risk- management processes and the types of processes that will ensure our dairy products can reach international markets. There was a scare last year over retroviruses. It is very damaging to New Zealand's reputation when such misinformation occurs. Retroviruses can be found in cattle, but they do not infect humans. They are killed by pasteurisation and processing. So to maintain our $5.8 billion export market we do need to have appropriate risk- management programmes. Milk is a highly nutritious food, but it is also an excellent growth medium for bacteria. Raw milk has the potential to transfer zoonotic diseases, and milk handling procedures must minimise the associated health risks, and we must not forget that. Milk will contain residues of veterinary medicines if the milk from treated animals is not appropriately withheld, and quality assurance programmes must address the quality issues and the risks presented by pathogens and residues. Safety and quality assurance programmes for milk and dairy products must cover the whole dairy chain from the farm to the table, and this new legislation will be looking at 29 Jun 2004 Animal Products (Dairy Products) Bill 14229 that. Processing and proper subsequent handling are the most critical steps to ensure safety of products. The processing of milk into a range of dairy products, which usually involves heat treatment, improves both shelf life and safety, while acidification retards growth of most bacteria. Some pathogens can survive in fermented milks made from raw milk, and can present a risk to human health. Fresh cheeses made from raw milk present similar risks, but hard cheeses made from raw milk and stored for periods in excess of 1 month are normally free of pathogens. New Zealand does have a markedly growing cheese manufacturing industry, and I have to say that I am sure all of us in this House have enjoyed some of the wonderful new cheeses that are available from all parts of New Zealand. Post-processing handling and packaging procedures must avoid post-pasteurisation contamination. So from the dairy shed through to our export markets, it is essential that we maintain our world standing and the billions that we do make in export. It is important that hormones, antibiotics, and pesticides that can contaminate our milk products are handled appropriately and do not pose a safety risk. This bill will be supported by the National Party. EDWIN PERRY (NZ First): I am speaking on behalf of my colleague Mr Doug Woolerton, who is a very effective member on the Primary Production Committee, and has a lot of expertise within this area. New Zealand First is supporting the referral of this bill, namely the Animal Products (Dairy Products and Other Matters) Bill, to the select committee. Bills Digest No. 1116 gives a clear overview of this bill. This bill needs to be passed without any constraints so the industry can get on with its business. The dairy industry, I must say, in the Wairarapa plays a major role in keeping the rural sector going, and the urban sector, obviously, by producing income and employment in those rural areas. We have just heard from the Minister that the national income of the dairy industry is $5.8 billion, which is— Dr Paul Hutchison: That's just for cheese. EDWIN PERRY: I thank my colleague from the National Party for that comment— an abbreviation of the income. Now let us look at some of the key points of this bill. Bills Digest No. 1116 states: "Purpose: The main aims of the Bill are to provide for the: regulation of the dairy industry under the Animal Products Act 1999 (Animal Products Act or Act) and to repeal the Dairy Industry Act 1952 (Dairy Industry Act); management of the risks to human and animal health from the consumption and use of dairy products; and facilitation of entry of dairy products to overseas markets by providing the controls and mechanisms needed for market access and the giving of official assurances." I would like to look at what is stated under heading "Background". This states: " 'The Animal Products Act applies to all animals, animal material, and animal product unless they are excluded. Dairy produce is currently excluded from the Animal Products Act. This Bill will remove that exclusion'. All dairy processors will be required to operate under a risk management programme unless they are excluded or exempt from all or part of the Animal Products Act. 'The Bill also provides for amendments to be made to the Animal Products Act which amend the operation of the Act. These amendments will include amendments to the export requirements, the conditions which can be applied to risk management programmes and the risk management requirements for multi-business risk management programmes. A range of other, essentially technical, amendments will also be made.' " Under the main heading "Main Provisions" in the Bills Digest is the paragraph headed "Commencement", and I will cover just one point here. That paragraph states: "The Bill will come into force on 01 July 2004 except for the amendments made to the Food Hygiene Regulations 1974, which come into effect on 01 July 2005 (Clause 2; 14230 Animal Products (Dairy Products) Bill 29 Jun 2004 Part 2, Clause 32(1)(e), Schedule 3, in relation to the Food Hygiene Regulations 1974)." Then, stated under the heading "Definitions": "The Bill inserts new definitions to incorporate the dairy industry in the Act. These definitions include 'dairy material' ('animal material' that is milk extracted from a 'milking animal' and any material derived from that material), 'milk' (the 'mammary secretions of milking animals'), 'dairy processing' (all processing activities in relation to dairy material),". I shall deal quickly with the paragraph headed "Power to exempt dairy material from Act", in the Bills Digest, and I think this is important. It is stated there that the bill enables the Governor-General by Order in Council to exempt dairy material, dairy product, or dairy processors from all or parts of the Animal Products Act if certain criteria are met. It is further stated that: "A transition period of 12 months will apply to all dairy processors operating at the time of commencement and who are not operating under product safety programmes. Those that operate under the Dairy Industry Regulations will be able to continue operations under those regulations for the period of the transition. By the time that year has expired they will be required to operate under a risk management programme or a food safety programme.", which, I think, is the key part of this bill. There is a lot of common sense in this bill, and New Zealand First recommends it and supports its referral to the select committee. Dr PAUL HUTCHISON (National—Port Waikato): I am very happy to support this Animal Products (Dairy Products and Other Matters) Bill on behalf of the National Party. We hear that this bill is going to the Primary Production Committee, but I am supporting it in the context of its huge importance to the food industry, and in the context of the huge importance of the dairy industry to New Zealand's primary products. Undoubtedly, according to the explanatory note: "The policy objectives of the bill are: management of the risks to human and animal health from the consumption and use of dairy products; and the facilitation of entry of dairy products to overseas markets by providing the controls and mechanisms needed for market access and the giving of official assurances." There is no doubt that dairy products are of immense importance to New Zealand, and the safety and quality of those products are absolutely vital to our export industry. I remember my old microbiology professor in Dunedin pointing out that he regarded milk as "bacterial soup". Clearly, it has the propensity to deteriorate if not kept in ideal conditions. That is the whole reason this bill imposes a series of risk-management processes that have flexibility—from the cow's teat right to the export market. I note the agricultural department's emphasis on the reasons behind the vital need for product quality and safety. It points out just how highly nutritious milk is as a food, but how it is also an excellent growth medium for bacteria. Raw milk, indeed, has the potential to transfer a whole variety of diseases: bacterial, viral, and zoonotic. As the primary producers of the Waikato are always keen to point out to me, it is hugely important that milk is collected in ideal conditions, and transported within 24 hours before it deteriorates. That chain of action, through to large dairy factories and then on to exporters, shows that at every stage it is vital to have in place safety and quality assurance programmes that are consistent with international best practice. The emphasis on quality assurance and risk management has shifted from end-product testing to certification of processes in approaches such as the hazard analysis critical control point system, and appropriate guidelines and training programmes have been developed by the Food and Agriculture Organization of the United Nations and other agencies to address product standards and specifications for milk and milk products, emerging issues like sanitary and 29 Jun 2004 Animal Products (Dairy Products) Bill 14231 phytosanitary standards, and the technical barriers to trade in the area of international trade. It is vital that New Zealand is at the forefront of that area. I note that in the development of this bill its genesis actually goes back to July 1999 when the previous National Government released a discussion paper. It was distributed to a wide number of stakeholders, including dairy producers, exporters, manufacturers, farming groups, consumer groups, Māori, and Government departments. Time was given for consultation and six submissions came back—all in favour of a risk-based management approach. I have spoken to both Federated Farmers and Fonterra, and they are supportive of that approach. Further discussion papers were produced in 2000, but we note that the commencement clause in the bill suggests enactment on 1 July 2004. The genesis of this very important bill dates back to 1999, so one wonders why this lumbering Labour Government—or maybe slumbering Labour Government—has taken so many years to finally bring it to the House. It does make one concerned as to where the Government's priorities are. Nevertheless, the bill is finally here and that is a good thing. I do note, according to Rural News on 17 September 2002, that: "Bringing the dairy industry under the Animal Products Act is a top priority says the New Zealand Food Safety Authority, in its post-election ministerial briefing." Even in the worst or the best- case scenario, the Labour Government has delayed this very important bill for 2 to 3 years. The Government was expecting it to be law at least a year ago. What has happened? All this is consistent with the way this Labour Government has put priorities into social engineering and not into the highly important area of our primary produce— our exports—to ensure that the standards surrounding them are in the best interests of our country. So here we have an important bill, fundamental to one of our key industries—the dairy industry—yet the Government has been sitting on it for several years. The bill is about putting in place international best-practice, risk management programmes, from the teat of the cow to the export market. National supports it going to the select committee. JUDY TURNER (United Future): I stand on behalf of United Future to support the first reading of the Animal Products (Dairy Products and Other Matters) Bill. This bill is about rescinding the Dairy Industry Act so that the dairy industry can be included under the existing Animal Products Act, and it is about amending the Animal Products (Ancillary and Transitional Provisions) Act. Its policy objectives are clearly defined and extremely prudent. They are: to manage the risks to human and animal health from the consumption and use of dairy products, and to facilitate the entry of New Zealand dairy products to overseas markets through improved quality assurances. Those objectives are outcome-based and less coercive than previous legislative-led intentions. The bill applies to all aspects of the dairying process, from the cowshed to the retailer, and is focused on identifying and managing health and hygiene risks throughout the process. All dairy processes will be required to operate under a risk management programme, unless they are deemed to be better regulated under another Act. The need to repeal the Dairy Industry Act is apparent. It is a 51-year-old Act that fuses a mixture of laws, some dating back to 1892. The Dairy Industry Act is rigid and prescriptive, and it is time indeed for a revamp. This animal products legislation reflects current industry and legislative practices, by using a risk-based management approach to control hazards. It also uses the regulatory model for verification in the use of recognised agencies. As someone who was raised on a dairy farm, it is fascinating for me to see how much a primary industry can evolve over time. The range of value-added products now marketed worldwide, compared with 14232 Animal Products (Dairy Products) Bill 29 Jun 2004 the humble cream can sitting on the stand by the gate waiting for collection, is a credit and testimony to those who manage, direct, and participate in this vital industry. The bill sets out to manage the fact that multiple business interests have handled many products by the time they reach consumers, so that confidence needs to be consistent at each stage. The risk to business of the poor performance by one contributor to the process is immense, and internationally recognised risk management is vital. It is pleasing to note that there were efforts to consult industry members about the underlying issue the bill seeks to address. As with any proposed legislation that affects the livelihood of stakeholders, both large and small, participation in the process—and, hopefully, buy-in—brings integrity to the bill and adds value to its intention. Consultation on that proposal has included discussion papers and the invitation to stakeholders to make submissions. Support was forthcoming, which included support from a dairy reference group established for the purpose of representing the interests of the dairy industry. Several options were considered when looking at the proposal, and the decision was to opt for an approach that was as future-proof as possible in allowing for the ongoing development of this industry. The guiding principles of this bill deserve recognition. Change is minimised where possible, to allow for as little disruption to the practice as possible. Harmonisation is specifically sought to further allow for the ease of transition. There will be no technical change without the consultation of affected parties, and documents, language, and processes will be clear and concise. Those principles, inherent in the bill, help to ensure best practice and best results. The regulatory model used for this bill is judiciously risk-based and outcome- focused. It will afford industry more responsibility for producing safe food, and give the necessary flexibility to achieve desired outcomes. The functionality of the model is commendable. It will add value to industry practice and procedure, and help to ensure ongoing success and best practice. We are very pleased to support this first reading. GERRARD ECKHOFF (ACT): Before starting on the bill I would like to make a slight observation, as I made yesterday in this House when speaking on the Meat Board Restructuring Bill. It is that it is a real pleasure to stand in the House and speak on a bill that we are in total unanimity on. I ask members to reflect on why that is. Here we have a farming industry that has no Government handouts or subsidy, and only a very little light-handed regulation if and when required. Does that not produce a great result in the House? That is what the people, whether they are up in the gallery or listening on the radio, want to see in this place—the Government and the Opposition working together for the betterment of this country, rather than indulging in party politics. That is rather nice to see, and I am delighted to take a call on this bill and support it going to the Primary Production Committee, as every other party is doing. I do so for a very sound reason: it is New Zealand's reputation as a country—New Zealand Inc, if you like—that is at stake if or when we ever, and I trust it will not happen, send food products overseas that are not safe. This bill is designed to ensure that the standards we apply to our consumable goods, whether meat or milk, or whatever, are the highest possible that technology can allow us to determine. So, as I said earlier, it is an issue that is met with a high degree of unanimity. We must therefore accept that we need a light-handed Government standard to give what could be described as a stamp of approval, because "Made in New Zealand" does mean an awful lot overseas. I am sure we are all very well aware of that. There are one or two issues that we need to flag, especially within the dairy industry—and indeed the wider agricultural industry—and that is the use of antibiotics, which, of course, testing will pick up. I saw a programme recently on television about the use of antibiotics overseas and the abuse of this miracle product. Although we use 29 Jun 2004 Animal Products (Dairy Products) Bill 14233 antibiotics in the dairy industry, and indeed in the orchard industry—I am not sure that many people realise that we spray orchard trees with amoxyl to kill certain bugs—they must be used in a very sensible and restrained way to ensure that resistance does not occur. I thought that programme was something we should all take a great deal of note of. I am sure that the people within our dairy and meat industries understand the need for very judicious use of antibiotics whenever necessary. Certainly, farmers understand the need for antibiotics at very limited times, and we now have the technology to pick up the overuse of antibiotics in our milk products. So that all goes to show that we are getting it right. From time to time an odd shipment of cheese causes concern—one went just recently that contained, I think, leptospirosis—and that has a profound effect on the confidence overseas countries have in our product. Thankfully, it was recalled and to a large degree the damage was, if not eliminated, certainly curtailed to some degree. It illustrates that we need to keep a very close watch on ensuring that the high standards that New Zealand is famous for are met at all times. That is not to say that we cannot, except in smaller or cottage industries, allow for cheese to be made in its natural and normal state—even without pasteurisation. I am told that in France, for example, the "real" cheeses are made that way. They have a certain taste, although I personally cannot recall ever eating any of those sorts of cheeses. I think it would be a shame if we closed our minds totally to ensuring that those who, in a small way, wish to produce these sorts of foods for consumption in New Zealand, which would not compromise our export industries, could do so. Global trade is an absolute reality, and as a trading nation where over 90 percent of our dairy products leave our shores, we have to be eternally grateful for that. As I said earlier, that imposes the realisation that we need to ensure that standards are met. It places real constraints on the dairy industry to get everything right, so this Animal Products (Dairy Products and Other Matters) Bill is probably a little bit overdue—as one of the National Party people alluded to—but at least we are getting there. I look forward to this bill coming before the Primary Production Committee, which is recognised in the House as probably the most sensible— Edwin Perry: Common sense. GERRARD ECKHOFF: It has common sense, as Edwin Perry says. It is the select committee that looks at an issue, rather than at the politics of an issue. That is the way it should be, so we are quite delighted that that should happen. This bill really is about risk management and making sure that the standards are met, and none of us would oppose that. As a member of the ACT party, I am not in favour of unnecessary rules, regulations, and legislation, but from time to time we have to accept that to get our products into countries overseas it is necessary for the Government to step in and ensure the safety of the products, impose standards, and let the industry get on with the job of meeting those standards. That is what the industry has done. It is an industry, as I said yesterday in debate on the Meat Board Restructuring Bill, that I as a farmer am enormously proud of. We will meet the requirements of New Zealand into the future—there is no question about that. All we need to do is open the trade up. Only 10 percent of our meat products are chilled at this time. Once we have 100 percent, or get close to that figure, the opportunities for our agricultural country will be enormous. That is something we can look forward to with some considerable relish. That is about all I wish to say at this time, other than to reiterate that I am delighted to see that the House has supported this bill in its entirety to the select committee, where, no doubt, it will get the committee's proper consideration. 14234 Animal Products (Dairy Products) Bill 29 Jun 2004 SUE KEDGLEY (Green): I seem to be the last speaker in this debate, but I am very pleased to join the total consensus in the House to support the Animal Products (Dairy Products and Other Matters) Bill. As the Minister who introduced it said, I think it is a fairly straightforward bill that basically is about applying risk management to the dairy industry. As others have pointed out, that is absolutely essential for the health and well- being of New Zealanders, and for the protection of our exports. I think that we in New Zealand are fortunate in that we have very high standards of safety in the dairy industry. I think we are fortunate too that our cows roam in paddocks and are not kept in concrete feedlots, as they are in some countries overseas. We are fortunate that we do not do things like inject our cows with a genetically engineered growth hormone, as is done in America. If I may digress for 1 minute, I was delighted to hear that Gerry Eckhoff watched that very interesting programme on antibiotics the other night. He talked about how important it is that we use antibiotics in a sensible and restrained way because of the concern about resistance that that programme documented. I am sure Gerry Eckhoff is aware that antibiotics are used reasonably judiciously in the dairy industry to treat mastitis, but I am afraid to tell him that in other industries—as I am sure he is aware— they are used most injudiciously. I am referring in particular to the poultry industry, where antibiotics are fed continuously to chickens in their feed and water. When Gerry Eckhoff talked about the need for judicious and restrained use of antibiotics, I became very hopeful that he will take up in the Primary Production Committee—the committee he has praised so heartily—the most injudicious, indiscriminate way that antibiotics are fed in New Zealand to literally 80 million or more chickens on a continuous basis, raising the spectre of huge resistance. I am sure that members are aware of surveys showing that 50 percent of the chicken flock is contaminated with vancomycin-resistant bacteria. The Minister of Consumer Affairs is looking perplexed, as if she does not believe me, but I would be very happy to supply her with all the studies that show this very regrettable aspect of our chicken industry. Fortunately, we do not have this problem in the dairy industry. Antibiotics are not used indiscriminately, and the industry has a very good and well-deserved reputation. I think this very straightforward bill, and this risk- management approach will hopefully enhance and strengthen that reputation. Gerry Eckhoff talked about how New Zealand's reputation as a country is at stake if we do not properly manage the risks to our dairy industry, etc. He is absolutely right. I think there are some concerns that the dairy industry needs to address to make sure they do not become more serious ones that could damage our reputation, as Gerry Eckhoff mentioned. The first one is DDE residues being found in dairy products. We have already had examples of testing in England, which found DDE residues in butter from New Zealand. I think that is a very real issue that the dairy industry needs to look at. I think the dairy industry needs to look at the whole controversy around A2 milk. I think there is a feeling that the whole issue has been seen as a threat, and there has been a lot of controversy. I think we should look at it with a very open mind, and do as much research as possible into claims that the various proteins in milk could affect our health. I think the industry needs to look very seriously at that. Although for the most part we have very good animal welfare practices in the dairy industry because our cows roam free, nevertheless there are some practices that I think we need to mention. They could be the sorts of things that could raise concerns, and animal welfare is becoming a concern internationally. We give cows various hormones and drugs to induce their calves to be born up to 3 months earlier, simply for the convenience of them all being milked at the same time. The inducing of calves in very substantial amounts is a practice that is causing concern internationally. There are 29 Jun 2004 Animal Products (Dairy Products) Bill 14235 concerns around whether that is acceptable, and around the treatment of male calves that cannot be used for dairying. I think the treatment of calves in general is something the Dairy Board needs to look at. Finally, there is the whole issue of effluent from the industry that is contaminating our rivers, streams, and lakes and causing a very serious environmental issue. None of the issues I have raised are dealt with in this bill—at least, not that I can see. That is a concern, because I think the Dairy Board needs to address all of those issues if it is to retain its excellent reputation, both internationally and here in New Zealand. However, it seems that the major policy objective of this bill is really to facilitate the entry of our dairy products into international markets. In most areas of food safety, we find that the focus is actually on our exports, rather than on protecting New Zealand consumers, and it would appear that this bill has the same focus. I notice that when the Minister talked about whom he had consulted, most of them were in the industry. He did mention that some sort of consumer had been consulted, but generally I think there is too much focus on protecting our international reputation and industry. I have no problem with that, but not at the expense of protecting the New Zealand consumer. I think we see that reflected in this bill, as well. Nevertheless, like all the other parties in the House, the Greens will support this bill, and we are very happy to do so. It will go to the Primary Production Committee, and I am sure that some of the concerns I have raised will be raised by the Green Party when it considers the bill in that committee. We will therefore be happy to join the consensus in this House in supporting this bill. Bill read a first time, and referred to the Primary Production Committee. MERCENARY ACTIVITIES (PROHIBITION) BILL Second Reading Debate resumed from 11 May. Madam DEPUTY SPEAKER: Keith Locke was speaking. He is not here. Sue Kedgley: Madam Speaker— LINDSAY TISCH (Junior Whip—National): I raise a point of order, Madam Speaker. If the member wishes to take another member's call, then she has to seek leave to take up the remaining time available. Madam DEPUTY SPEAKER: Yes. Sue Kedgley, you need to seek leave from the House to take the remaining 8 minutes of your party's call. SUE KEDGLEY (Green): I would like to do that. I seek leave to complete Keith Locke's speech. Madam DEPUTY SPEAKER: Is there any objection to that? I call Sue Kedgley. SUE KEDGLEY (Green): I speak on behalf of Keith Locke, who was speaking when the debate was interrupted. The Green Party supports this bill so that we can help to get rid of the scourge of mercenaries—soldiers of fortune who kill people for personal profit. This bill will enable New Zealand to implement the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. The disastrous situation in the Congo today has its origins not only in Belgian colonialism, but also in the use of mercenaries immediately after independence by Western political and business interests. The mercenaries overthrew the radical Lumumba Government and slaughtered thousands of people. Thankfully, political developments in Papua New Guinea prevented Sandline International mercenaries from going into Bougainville, so instead we were able to have peace negotiations there and a peace settlement. 14236 Mercenary Activities (Prohibition) Bill 29 Jun 2004 Today there is much discussion about whether any of the 20,000 foreign contract bodyguards and security officers in Iraq qualify as mercenaries under this bill, and whether any of them are New Zealanders who could be prosecuted under it. The bill states that a mercenary is one who, for private gain, takes part in hostilities, and that mercenaries' remuneration should be substantially in excess of that of locals, unless they are involved in a concerted act of violence, in which case they need be rewarded only with significant private gain. Clearly, foreign bodyguards in Iraq earn several times as much as Iraqis—anything up to $3,000 a day—so on that count they would be classified as mercenaries under this bill. Some of them take part knowingly in hostilities with what is deemed to be an enemy force. A good example of real mercenaries are the commandos of the US firm who on 4 April were involved in an intense firefight around the US Government headquarters in Najaf against Shiite militia, and who used company helicopters to bring in more ammunition and ferry out a wounded marine. At the other end of the scale, a Kiwi with a sidearm who was escorting around a BBC cameraperson would not qualify as a mercenary under this bill. One of the ruses that Governments use to try to hide mercenaries is to say that soldiers are really just a part of a national army. However, the test is not just the amount of money that hired foreigners earn, but whether they are independent of the command structure of the local army and not subject to the same discipline and rules of engagement. Real mercenaries have that degree of autonomy. Mike Hoare's mercenaries in the Congo in the 1960s and mercenaries in Papua New Guinea in the 1990s were never part of the local army in a real sense. In fact, a common-sense reason why Governments hire mercenaries—and often they do it covertly—is basically to get them to torture people and to do the dirty fighting that is outside the Geneva conventions. They can then say that it was not their soldiers who committed the terrible atrocities. Another ruse that people have used to try to get around the anti-mercenary convention is to define those taking part in hostilities only as direct combatants with weapons, when clearly everyone in the command structure of a mercenary unit can and should be defined as a mercenary. There certainly may be New Zealand mercenaries in Iraq. We know that six former members of the police's Special Tactics Group have gone there, as have former SAS people, and they should know that when they do, they may have trouble with this law if they use arms in military hostilities in Iraq. Their Kiwi recruiters need to be aware of that too. Companies like Red Key Security are advertising in New Zealand papers. The Green Party is disturbed about the complicity of the New Zealand Defence Force in that recruitment. For example, Brigadier Southwell provided a testimonial for a Defence Force sergeant who resigned last year to operate in Iraq. The brigadier wrote that he had no hesitation in recommending the sergeant as a leader of a close protection team in even the most severe of security situations. If this bill had been passed at that time, Brigadier Southwell could arguably have been caught up in its provisions and ended up before the courts, if that close protection team had been proved to be a mercenary unit. Just because our Defence Force is operating alongside the Americans and the British in Afghanistan and Iraq—unfortunately, in the opinion of the Green Party—that does not give New Zealand Defence Force officers the right to recruit mercenaries for the American or British authorities in Iraq. Hopefully, this bill will put a stop to that sort of behaviour and, for that reason, the Green Party strongly supports the bill. JUDY TURNER (United Future): I will take a very brief call on the second reading of the Mercenary Activities (Prohibition) Bill. This bill, according to its commentary, contains provisions required to be implemented in New Zealand law to 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14237 enable us to comply with the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. There was some concern about the small number of parties that have so far ratified that treaty, and questions were raised as to whether New Zealand should, for that reason, tarry in terms of signing it. I think the point made at the Foreign Affairs, Defence and Trade Committee, which is reflected in the commentary, is that New Zealand should make up its own mind and not necessarily always wait for the actions of other countries. We should be autonomous in our decision making in that regard. So the key issue is whether New Zealand is willing to subscribe to the particular obligations the treaty imposes. United Future believes that that is an appropriate action—mainly because we think this bill needs to act as a deterrent, so that New Zealanders who may be contemplating becoming mercenaries would give it a second thought. We would never want New Zealand to be considered a safe haven for those kinds of activities. It is kind of interesting, too, that over the years we have heard reports, which we often put down to urban myths, of private armies training in obscure parts of New Zealand. I have always had huge amounts of doubt, but in the new climate in which we now find ourselves, with the rise of terrorism, I think we would be foolish to neglect this issue and to think that somehow, because of our distance from other countries, we are somehow excluded from the possibility of New Zealand being a place where mercenaries may want to set up and conscript people to work for their cause. There are also some interesting facts listed in the commentary about the definition of a mercenary. It is interesting that the scope of this legislation has been very specifically targeted to definitions that are based on provisions in the Geneva convention. There has also been an attempt to look at definitions that define the difference between people who take part in coups and terrorists attacks, and those who take part in other events that may fail to reach the definition of being full-blown wars but nonetheless are aggressive acts, the forces for which are supplied by mercenary armies. I finish by saying that United Future is very pleased to support this bill, for the safeguards it will provide. Dr WAYNE MAPP (National—North Shore): National is opposing this bill, and there are particular and deliberate reasons why we do so. In fact, the set of circumstances set out by the Green Party tells us why the bill as it has come back from the Foreign Affairs, Defence and Trade Committee fails to meet the requirements necessary for National to support it. National did vote for this bill to go to a select committee, and we do recognise that there is a category of people—the private army, if one will—whose activities should be prohibited. A number of people from across various parties have referred to cases in, particularly, Africa, where persons are recruited who would never form part of the armed forces of a particular nation but who are there, effectively, to create mayhem. They are not in the category of bodyguards and they are not contracted to assist—as, for instance, occurred in Iraq, where Mr Bremer had privately contracted bodyguards—but they are there in the classical sense of the mercenary. They are a private army undertaking armed conflict, creating havoc, death, destruction, and instability, and often overthrowing legitimate Governments. If the bill was limited to that and precisely aimed at that, National would have absolutely no doubt that to support it was the right thing to do, and I believe that every party in the House would have shared that view. I guess the benchmark is this—and I will refer to the situation of my colleague Ron Mark, because it has been referred to in the past. As he has stated many times in this House, he was contracted to join the Sultanate of Oman's army. It was largely arranged through the British Government, so he was in a sense an instrument of foreign policy. 14238 Mercenary Activities (Prohibition) Bill 29 Jun 2004 There would be no doubt, and it would be common knowledge, that people recruited in those circumstances were paid more than local citizens; that was never in any question. Yet this bill would capture someone in the situation that Ron Mark was in in 1990. The action of people with particular skills joining the army of a legitimate Government in order to provide those specialist skills is a long tradition, and is commonly used by many countries—often with the blessing of many democratic countries, because it is designed to reinforce stability in those countries, and, in fact, has done so. If the select committee had used its wit and wisdom to ensure that the situation Major Mark was in was excluded, then there would have been no doubt that National would support the bill. But to find a definition set out carefully in clause 5 that was fully considered by the select committee, and that still effectively covers that situation—the Greens say it does, and so does the Government—tells us that the bill is wrong. Surely the Government should have taken on board the countries that are not signatories: Britain, the United States, Australia, and Canada. Those are countries from which highly skilled military professionals are often recruited by, particularly, Middle Eastern nations to form part of their armed services. Those people are under the normal chain of command; they are not a private army or anything of that nature. For this bill to capture them is, I think, a case of New Zealand essentially trying to have an expression of political correctness. The idea of prohibiting mercenary activities sounds reasonable on the face of it. What person would want to support a mercenary in the classical sense? The answer is that very few people would. But the way that this convention was pulled together, and the way that the select committee did not then do a proper job of limiting the application of the bill, show that the Government was not serious about the convention, but, rather, simply wanted to have a record of being some kind of model citizen. I wonder whether the New Zealand Government would ever prosecute in that situation—because I cannot imagine that it would—and if it does not intend to do that, then what is the point of passing law like this? The reality is that this bill should not be passed in the form it is in. The select committee had the opportunity to come up with a sensible definition, but it failed to do so. One has only to look at a number of situations in the Pacific, and I am not talking about the Sandline International situation. For instance, if any Pacific nation decides to employ a New Zealand helicopter pilot for quite legitimate reasons, and to have that person in its armed forces, who almost certainly will be paid more than the local people—let us be realistic about this—then such a person is likely to be caught by the convention. That, frankly, is ridiculous. It is bad law to sign up to conventions that are there for the warm glow of it, if one will, rather than to take a reasoned and sensible approach to prohibit the genuinely egregious behaviour of the private army operating outside the normal military conventions. The British Government, the United States Government, and many other European Governments have said this kind of convention simply does not take account of the real world. The issue of Iraq has been mentioned recently—and so it should be; it is an important issue—and there are literally thousands of people there who are highly skilled and undertaking a wide variety of tasks. I mentioned the case of Mr Paul Bremer. His immediate security was privately provided. I absolutely guarantee that those security personnel were earning more than a Private First Class in the United States army. Peter Brown: You think so? Dr WAYNE MAPP: Yes, I hazard a guess that they were earning a little more than a Private First Class. Yet that activity, which clearly has approval at the highest levels of the United States Government, would be caught by this convention. Does New Zealand really think it is right for such people to be caught by the convention? I would not be at all surprised if the Prime Minister, either knowingly or unknowingly, had the 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14239 benefit of such protection herself when she visited Iraq. Surely she is not suggesting that those people should be at risk of prosecution, yet that is how this convention is worded. It is wrong to pass conventions that are so poorly drafted as to capture a wide class of people whom we would think are doing a good job—helping peace, preserving security, and providing countries with the ability to get ahead—just in order for Mr Goff to go on some sort of international stage and say that New Zealand is a party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. We do have to take a more critical approach to the precise wording, work out precisely what we are really against—and it is clear what that is—and also work out what we say is OK. This bill, as presented to the House, simply does not meet that threshold test. Hon KEN SHIRLEY (ACT): That was a very compelling speech from Captain Mapp, and I have certainly taken on board the very many good points he made and I concur with them. I think the key point he made is that the International Convention against the Recruitment, Use, Financing and Training of Mercenaries is nothing other than UN feel-good pap that this Government, again, rushed out there to sign up to without scrutinising and thinking it through. The convention has not been signed by our traditional allies Britain, the United States, Canada, and Australia—not one of them signed this convention. Why did the New Zealand Government rush off and sign this convention, and why now, today, does it want to legislate to give it effect? This is a classic example of what this Government does—and now Major Mark has joined the debate, and I hope members also hear from him shortly. The Kyoto Protocol is another classic case of UN feel-good pap. We know that it will not work and that it is ineffective, but bureaucrats and officials rush off to those meetings, sign up, and commit us to it. In this instance, we know that the United States, Canada, Australia, and the United Kingdom have not signed the mercenaries convention. They disagree with it, so why on earth should New Zealand sign that convention and, here today, try to legislate for it? There have been some very good examples of our getting into very serious problems with definitions. Modern military activity is not just a matter of a bunch of foot soldiers being issued with muskets and lining up against each other; it engages an incredibly high level of technology and support services, in terms of the weaponry and the deployment. The example was given of whether a private helicopter pilot who was assisting Papua New Guinea, Fiji, or Tonga would come within the definition of mercenary in this instance, and it seems that that pilot would. But the bill then goes on to state that a computer consultant looking at the computer systems and information technology that control weaponry would certainly come under the definition of a mercenary. So it is bad legislation. We do not support it. An example was also given of the Iraq situation. Tens of thousands of people who are assisting in the post - Saddam Hussein reconstruction would fall within the definition of mercenary in this bill. It would be foolish to expose them to prosecution and to the provisions of what is very bad legislation. So the ACT party will not be supporting this bill. The example was also given of Major Ron Mark, who was a mercenary. I have his attention now. Dr Wayne Mapp: No, he wasn't a mercenary. Hon KEN SHIRLEY: He was a mercenary, and he should be proud of it. He did a very good job for the Sultan of Oman. The other classic example is the Gurkhas, who have a very proud tradition within the British army. They are actually paid less, not more, than the normal British troops, which has been a real problem for them for some time. They would clearly be defined as mercenaries within this bill, even though they have done a very good job in many areas and theatres of conflict around the world. 14240 Mercenary Activities (Prohibition) Bill 29 Jun 2004 I see no redeeming features in this bill, whatsoever. I ask the Labour Government, for goodness' sake, to look at things as an independent sovereign State, rather than just signing up to UN pap. That is what it has done with this example. It should not be signing up to and implementing this convention. It is foolish, and the ACT party will be opposing it strenuously. JUDITH COLLINS (National—Clevedon): The National Party has made it very clear—particularly in the succinctly put speech by Wayne Mapp— Hon Ken Shirley: Captain Mapp. JUDITH COLLINS: —who I note was a captain—that we are not in favour of the activities of mercenaries, as the Green Party was certainly speaking about before. What we are in favour of is accepting reality. People in the circumstances of Ron Mark—who is now a member of this House—when he was with the Sultanate of Oman would be caught by this bill. Quite clearly, that is ridiculous. We have talked a lot today about the fact that none of our traditional allies—when we had allies—and friends have signed up to this treaty, but I think it is really important to take a moment to remind the House who has signed it. It is stunning. I will read them out: Azerbaijan; Barbados; Belarus; Belgium, which was so good against the Germans, did members not find; Cameroon; Costa Rica; Croatia; Cyprus; Georgia, and I remind members that that is the country not the State; Guinea; Italy, which at least is well known; Libya—how about a bill on terrorism; no, that is right; the Libyans have now sorted themselves out—Maldives; Mali; Mauritania; Qatar; Saudi Arabia; Senegal; Seychelles; Surinam; Togo; Turkmenistan; Ukraine; Uruguay; and Uzbekistan. The stunning comment we make here is that the vast majority of those nations did not exist 20 years ago. The only reason they do exist is the breakdown of the cold war, and the work that the Americans and the other Western countries did to free them from the yoke of socialism. John Carter: Communism. JUDITH COLLINS: Communism, as Mr Carter quite correctly says. There is not much difference, I say to Mr Carter. That is what we are signing up to. We are in great company with that lot, are we not? Dr Wayne Mapp: Lots of democratic countries. JUDITH COLLINS: There are lots of democratic countries, as Mr Wayne Mapp says! That is what we are signing up to. I was concerned by what Mr Shirley said about the situation of the Gurkhas, and I would like clarification from a Minister that the Gurkhas would not be included in the legislation, because their deeds are legendary. Their courage, their stamina, and their loyalty to the British Crown have been utterly legendary. We need to take that into account. Having read the bill and looked at the definition of "mercenary", I am concerned as to whether the Papal State might have a bit of a problem. Does it not have the Swiss Guard? Is the Swiss Guard not in fact a private army that is made up of mercenaries— that has always been made up of mercenaries? Every Catholic person in this Parliament should consider that he or she is about to outlaw the Swiss Guard. The comment was made in the House that the Prime Minister, when she was in Iraq for her photo opportunity, might in fact have been protected by some of these dreadful contractors who are paid more than the locals for doing their jobs. Frankly, I can understand why they might need to be paid more than the locals to do their jobs—in more ways than one. Those people might have protected her. Did she not travel through Italy in a car at 200 kilometres an hour to visit the Pope, and was she not looked after by the Swiss Guard at those times? Was that not so? Hon Ken Shirley: She wore a dress! 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14241 JUDITH COLLINS: I think it was a skirt, I say to Mr Shirley; we should get it right. I think so. So, really, will that not be a problem—the fact that the Papal State might have an issue with the legislation? Is that not a problem? Where is the great call for the legislation? Where is the great need? Is it not all about the fact that some New Zealanders have gone to Iraq to help out the Iraqi people in their liberation? Is that not what it is all about? The Prime Minister is brassed off that they can earn more money there—and they should, as they are in great danger and have shown the way to a lot of other people who would like to see that happen, as well. They are doing some really good work. Occasionally I wonder about people who go on about peacekeeping. Who do we think makes the peace? It is the people who put their lives on the line, day after day. I heard the Green member speaking about mercenaries and war. She talked about "clean war". My dear old dad, who is long departed now, spent 4 years overseas in the Second World War as an engineer. He was in the front line, as engineers were. He always said to me that the people who say war is fun and glorious were not there. The people who say there is such a thing as "clean war" were not there. The fact is that not only do mercenaries commit acts of barbarity against each other and others, but so do armies generally. That is the way it works in war. War is hell, it has never been any different, and it never will be. There will always be war when there are people who will not accept the democratic process and will not accept that people have the right to determine their own result for their country. That is what happens. If we do not stand up for democracy, we will be calling on mercenaries ourselves. One of the things that is really obvious in the bill is that it will not allow our people to be able to make their own decisions about where they want to be and what they want to be doing. I wondered whether this bill would have applied—if it had been in place 60-odd years ago—to the American servicemen who went over and served with the British before Pearl Harbor. Of course, if they were paid more than the locals, then, yes, it would have. Those people risked their lives fighting against fascism, and in this House today we are condemning them, provided that they were, in fact, paid more. We need to be able to accept that some people have specialties—Mr Mark obviously had a specialty, which he took to the Sultanate of Oman. We are condemning them for using that, for going into harm's way without someone demanding that they do so. Because they exercise their free will they are condemned. I completely support the comments made by my colleague Mr Mapp, and I say that this bill is an unnecessary piece of feel-good rubbish that is being put together by this Government so that we can hang out with the likes of Qatar. A party vote was called for on the question, That the amendments recommended by the Foreign Affairs, Defence and Trade Committee by majority be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Question agreed to. 14242 Mercenary Activities (Prohibition) Bill 29 Jun 2004 A party vote was called for on the question, That the Mercenary Activities (Prohibition) Bill be now read a second time. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Bill read a second time. Instruction to Committee Hon JUDITH TIZARD (Minister of Consumer Affairs), on behalf of the Minister of Foreign Affairs and Trade: I move, That it be an instruction to the Committee of the whole House on the Mercenary Activities (Prohibition) Bill that it take the bill part by part. A party vote was called for on the question, That the motion be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Motion agreed to. In Committee Part 1 Preliminary provisions Dr WAYNE MAPP (National—North Shore): The core part of our whole concern in relation to this bill is contained in clause 5, which relates to the definition of "mercenary". As I and other colleagues like Judith Collins have indicated, our concern is the way the definition would attack perfectly legitimate activities—activities that if the Government actually thought about them, it would see it is not in its own or New Zealand's interest to try to prohibit. In fact, as I suggested in my speech in the second reading, probably our Prime Minister has experienced some advantage from such activities in her visits to Iraq particularly, and perhaps also to Afghanistan. The problem is that clause 5(1) states that a mercenary is defined as any person who is, first, recruited within New Zealand, and, second, whose primary purpose is to take part in hostilities, and, third, who is paid more than persons of a similar rank or functions in the armed forces. I guess it is fundamentally that third part of the definition that is the problem— paid more than combatants of similar rank and functions in the armed forces. That means that the provision then covers people who are members of the host State's armed forces. I will use the example of Major Mark, because it is one that people understand. There are many other people whom I have known over the years who have served in various Middle Eastern armies in specialist roles. Many of those people know perfectly well that they will be engaged in hostilities. They are at a time of life when there is a certain sense of adventure, if I could put it that way, so that has its own attractions, and, of course, they get paid more in the host State. But they are nevertheless part of the legitimate army of that nation. In short, they are not a private army. Yet under clause 5 such a person is deemed to be a mercenary. If the Government had thought about it, it surely would not be its intention that that sort of activity be caught. That is the first category. 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14243 A second category is the increase in the numbers these days of private contractors. I am aware that clause 5(2) does exempt persons who are involved in domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property. But again, let us be realistic. A lot of those people are doing a little more than policing activities. They are certainly working under the authority of, in the case of Iraq, the occupying powers—both Britain and the United States—but one has only to observe the level of equipment they have to know that they are not conventional police officers. They have experiences that take them well beyond that. Of course, that is the reason they are chosen; they are incredibly highly skilled, in a very dangerous environment. Sometimes they are involved in rescue missions, and so forth. The question becomes whether it is intended that they be caught as well by the Government. Surely that cannot be the case. For both those reasons, National was opposed to the bill as it came out of the Foreign Affairs, Defence and Trade Committee. If it had been confined to the private armies that have been the scourge of so much post-colonial activity in Africa, we would say yes, the convention had a legitimate goal. But the fact that Britain, Australia, the United States, and Canada have all chosen not to sign it is because they know it catches the very activities that those four Governments and, frankly, many New Zealanders, have been involved in. Thus the bill is badly conceived. RON MARK (NZ First): I rise to congratulate Dr Wayne Mapp, a former serving officer in the New Zealand Army, on his insight into this legislation and what it means. I congratulate the National Party and the ACT party also. It seems that only members on the Opposition side of the Chamber understand the realities of maintaining international law and security, and the responsibilities—and sometimes the price—that seem to come with those rather challenging tasks. Is this Government not interesting! It is so concerned and interested in this bill that its members have private little chit-chats all around the Chamber. They do not even take calls, and that is what the country gets as good governance. I am astounded at that. If members of the Government were to read the bill and pay some attention to it, they might like to consider clause 4, "Interpretation", and in particular, clause 4(1)(a). [Interruption] Mr Barker may like to call me mercenary, but I was quite— Hon Rick Barker: I never said that. RON MARK: Those members were quite happy to have me stand as a candidate for them straight after I came back from Oman. They did not have any problems with that then. They knew full well my military service background, yet they selected me. If those members interject, then they deserve a slap. Mr Hughes should read clause 4(1) and consider this point: a "concerted act of violence means an act of violence designed to (a) overthrow a government or otherwise undermine the constitutional order of a State; or (b) undermine the territorial integrity of a State". I ask the Government whether we should stand idly by, and not protect the world from chaps such as Saddam Hussein, Tariq Aziz, and "Chemical Ali" Hassan al-Majid, who appeared on page B1 of the Dominion Post this morning. Are they the sorts of people this Government does not want to see overthrown? The question is this. When the Governments of States decide that it is time to do something, because there is a rogue State—a nation that jeopardises the security of the rest of the world— traditionally, they have used both covert and overt means to achieve that end. New Zealand has sat as a partner in many alliances and accepted that and agreed with it. Let us take the East Timor situation. How many mercenaries were involved behind the scenes in helping East Timorese fighters to fight for their freedom? They were people whom Keith Locke and Matt Robson championed. How many mercenaries were hired behind the scenes to help to overthrow Pol Pot? Those were people whom Keith Locke 14244 Mercenary Activities (Prohibition) Bill 29 Jun 2004 championed and people whom Matt Robson said he abhorred. How many people would have been hired—or could have been hired—to help to alleviate the situation in Rwanda, because the legitimate States were sitting on their hands, doing nothing? How many clandestine, covert operations have been sanctioned around the world involving the use of contract personnel in order to enhance the security of the greater free world? There have been tens of thousands, and that is the truth. Members should think of the Congo, and of Afghanistan in the 1980s. Whom did Britain, the United States, and, by implication, the entire British Commonwealth, sanction to go into Afghanistan? I look at the United Future member who will vote for this legislation. Everyone tells me that he or she absolutely detested the Taliban. Who were the people who helped the mujahideen to chuck the Soviet Union out of Afghanistan? For one, there were legitimate defence forces, such as the SAS and the CIA. But a large number of contract personnel were also put in there, and sanctioned and approved with the knowledge of legitimate States such as the United States and the UK. Hon JUDITH TIZARD (Minister of Consumer Affairs): Just for the sake of clarity, I suggest that the Committee looks carefully at clauses 4 and 5 where the nature of mercenary activities and of mercenaries is defined. For a person to come within the bill and the convention, he or she would need to take part in hostilities in an armed conflict. The focus is on those people actually taking part in hostilities in a combative role. Many of the examples given by Mr Mapp today seem very unlikely to fall within the definition of the bill. For example, the security guards for the Prime Minister would clearly fall outside the definition of a mercenary. Clause 5(3)(d) specifically states that people participating in "domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property" are not mercenaries. In addition, persons who are providing assistance with reconstruction, and with the training of local armed forces, provided they were not undertaking a combative role, would not be covered. Of course, a person who would be defined as a mercenary also has to be recruited within New Zealand or elsewhere in order to take part in hostilities and armed conflict, has to be taking part in hostilities for private gain, and has to be 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. So to work with another armed force if that was in the normal course of, for example, working in Oman, would be perfectly legal and would not be defined as being a mercenary. There is a lot of nonsense being talked by members of the Opposition. That is their job, but I wish they would stick to the legislation. DEBORAH CODDINGTON (ACT): I ask the Minister what is wrong with fighting. What is wrong with being paid to fight? What is wrong with being paid more to fight than those of equal rank in the armed forces? The mentality of this legislation shows up the Labour Government members for the "peacenik" lefties they are, stuck in the time warp of the 1970s. A lot of us also marched against the Vietnam War, but we grew up. We got real. We realised that we do not live in a benign environment and that if people want to have peace they should prepare for war. Where will it end? Will we be passing domestic laws that prohibit private security guards—the people we pay to protect our homes and property because this Government has let the police force down so badly that they can no longer do the job that our taxes pay them to do? This legislation will have the effect of downgrading the armed forces. Hon Judith Tizard: Rubbish! DEBORAH CODDINGTON: The Minister says "Rubbish!". If members look at the definition of a mercenary, they will see that a mercenary is defined as someone who 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14245 is paid compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party. This is eliminating competition. What incentive is there on any State—take New Zealand—to improve the pay of its armed forces if there is not the risk that they will be lured away by a private contractor who can pay them substantially more? What does the Minister think? Does she think that people should just go to someone like Pol Pot and negotiate? Does she think they should just sit down at a little meeting? What is wrong with someone being recruited to overthrow a Government or undermine the constitutional order of a State when we are dealing with evil like Pol Pot? Does the Labour Party think we should just sit down and have a meeting with them, hold hands, and have a little chat, and send in the peacekeeping forces? Hon Judith Tizard: Yes, that is what happened with Pol Pot. DEBORAH CODDINGTON: I suppose the Minister thinks it is funny that six million people died under that regime—people like that Minister. People were killed just for wearing glasses or being able to read. That is what earned one a death under that regime. We go on and on ratifying conventions because the leaders of that Government love swanning around the world and being photographed as they sign us up to these international conventions—conventions and treaties that our traditional allies will not go near and will not have a bar of. But New Zealand decides to sign up to them. What happens when we sign up to them? Absolutely nothing! We sign up to international laws and pass our own laws to ratify them, including laws allowing us to prosecute child sex offenders overseas. Since 1999, have we prosecuted one of those people? No. Have we, despite the matter being brought to the Government's notice, even chased any New Zealand sex offenders who have disappeared overseas, jumped bail, or absconded from charges? No. Hon Judith Tizard: Yes. DEBORAH CODDINGTON: The Minister should read the replies to my parliamentary questions to see what the exact situation is. Nothing has been done. It is all window dressing. The Labour Government thinks that signing up makes New Zealand look good and enables us to get a place in the UN—that talkfest, that huge bureaucracy. It is a shameful situation here. All patriotic New Zealanders who believe in the protection of the State, believe a country has a role to protect its own citizens, and believe what is in their own hearts should have the right, if they see something bad going on in another country, to go there and do something about it, even if they do get material gain from doing so. So what if they get material gain from doing so! What is wrong with that? This is just a disgrace. JUDITH COLLINS (National—Clevedon): I want to return to the issue of Mr Ron Mark—or, as he was, Major Mark—in terms of the definition of "mercenary". I cannot understand why the Government wants to outlaw someone with Mr Mark's skills from being able to be recruited through the British Government to go and assist the Sultan of Oman in a military-like capacity. What is wrong with that? We in the National Party do not want to see private armies around, and clearly, as a centre-right Government, we would not at all condone that. But this legislation goes too far. Dr Mapp has prepared an amendment to this particular provision that would make it plain that Mr Mark's situation would not be covered by this bill. I ask the Minister in the chair, Judith Tizard, to look at his amendment. It is a sensible one and it would go a long way towards helping this bill make some real sense. Dr Mapp's amendment proposes to amend clause 5(2) by adding new paragraph (c), which states: "Within the meaning of subsection (1)(a) if he or she is employed directly within the armed forces of a party to the armed conflict whether or not they are paid more than any other 14246 Mercenary Activities (Prohibition) Bill 29 Jun 2004 persons of similar rank or specialty." So that says that if a person is part of the army of a particular country—whether it is Oman, Azerbaijan, or whatever—he or she will be protected from this legislation. We know that this legislation, after many years of sitting where it should be—which is in somebody's filing cabinet—has come about solely because some New Zealanders have had the courage of their convictions and have acknowledged that because of their specialist skills they can go and work in Iraq to help it in its liberation and rebuilding. They say: "I can do that, and I can make some money. Good on me!", and they have done that. And that is what this is all about—the Prime Minister has been on television telling those people that they should not do that. Of course, if they are actually going to be earning money, they do not want to have it all taken off them by the dreadful tax rates we have here. [Interruption] That is what this is all about. Tomorrow I will visit our SAS troops, who will be thrilled to know what this Government thinks of them— Dr Wayne Mapp: Because many of them want to do a job. JUDITH COLLINS: Exactly. Many of those SAS troops would like to know that, at some stage, they can go off with their specialist skills and assist in this way. There are not very many jobs out there for people who happen to have certain specialist skills in this area. There are not an awful lot of those jobs in the legitimate workforce in New Zealand. The fact is that we say to those people at age 50, 55, or whatever that we do not really value their skills any more, and I think that those people are, as specialists, entitled to use their skills to train others and to be involved in places where they are needed—and good on them. We should be proud of the fact that they have skills and that they are sought after. We are not talking about private armies. We are not talking about people who go into other countries and rape and pillage and kill indiscriminately; we are talking about the people—and Mr Mark is representative of them—who use their skills, particularly in a legitimate way, and are rightly proud of their service, and I say good on Mr Mark for doing so. This Government is not only soft on crime, it is soft on defence. It is tying us up with little-known countries, most of which did not exist 20 years ago. We are being aligned with them. We no longer have allies. We have some friends. What we are doing now is aligning ourselves with countries that, by and large, are not ones we would ever want to be aligned with in a crisis. We would never want to have to stand up and say: "OK, New Zealand, armies are coming to attack us, but don't worry, we have Azerbaijan coming to help us." MOANA MACKEY (Labour): I move, That the question be now put. RON MARK (NZ First): First, I want to give a bouquet to the Minister in the chair, Judith Tizard, because she has taken a call and attempted to answer some of the questions put to her, which is a little unusual in the Committee of the whole House, and I appreciate that. I have again gone through article 1 of the Convention against the Recruitment, Use, Financing and Training of Mercenaries, on which the definition is based. I can deal with this blow-by-blow. Article 1.1(a) provides that a mercenary is a person who: "Is specially recruited locally or abroad in order to fight in an armed conflict;"— Hon Judith Tizard: And read on. RON MARK: I will come to each one, in turn. I note with interest that countries that have signed up to this convention, such as Qatar, Saudi Arabia, Italy, and Libya, are countries that have employed, and still do employ, mercenaries. A good friend of mine was second in command of a Baluchistani mercenary battalion on the border of Oman, and opposing him across that border were Pakistani 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14247 mercenaries—in Saudi Arabia. So straight away I would question the commitment of one of the signatories to the convention—a convention that New Zealand has signed up to. As for Qatar and Libya, well, everybody knows that Libya not only employs mercenaries but also dispatches them. It is an absolute nonsense. How does one get around this provision that refers to people who are "specially recruited locally in order to fight in an armed conflict"? It is by getting recruited into a command appointment where one does not have to physically, personally, fight; rather, one commands a battalion and simply issues the orders and instructions. In a court of law I could argue that I was not there fighting; I was simply administering resources. That is my argument. When I was in the Middle East, one of my jobs was to go to India and Pakistan to specifically recruit former defence force personnel from those countries to take them back to the Middle East. I was looking for people with specific trades and technical skills, but alongside me were my colleagues who were going to recruit people like Gurkhas. We needed Gurkhas in our unit to provide specialist security tasks that were mainly oriented towards looking after us, just in case things got very awkward with our local Arab friends. That was one of the things one had to do. Those people were employed on a normal day-to-day basis. They did base security and personal security, and they never ever had to engage in combat. But they were there to do so should they be called upon. Sitting suspended from 1 p.m. to 2 p.m. RON MARK: Before we lifted for lunch I was referring to the definition of "mercenary", which is based on article 1 of the convention, and particularly article 1.1(a). I now move to article 1.1(b), which provides that a mercenary: "Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the 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;". The reality is that even an Indian soldier recruited to serve in the Omani army would be paid more than many of the people alongside him. Stephen Franks: Especially if they are conscripts. RON MARK: Yes, especially if they are conscripts. The idea and notion that a professional officer of the New Zealand Army or Air Force, or the British army or air force, would go all the way over to Saudi Arabia, Oman, or Iraq to help rebuild a nation and do it for nothing, or for the same wages that the locals would be paid, is a nonsense. The very reason that person would be asked to accept a contract to go over there to work for those armies is that person has professional skills of a very high standard that those armies want, and they know that they have to pay to get the skills. The men or women are setting themselves up to leave their homes, families, and children back here in New Zealand, and they will not do that for peanuts. To make them mercenaries by this definition is wrong, and it is not helpful. At the end of the day, other ways exist to deal with those unsavoury characters of the ilk that the Government is quite legitimately trying to deal with. The ways around this also exist. I go to article 1.1(c), which provides that a mercenary: "Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;". Can anyone answer me this question? Of all those expatriates who went into Afghanistan to fight the Soviets and help the mujahideen—because it was a sensible thing to do in those days—none of them were nationals of parties to the conflict, but they did us a service. 14248 Mercenary Activities (Prohibition) Bill 29 Jun 2004 SIMON POWER (National—Rangitikei): Part 1 raises very quickly the heart of the opposition to this Mercenary Activities (Prohibition) Bill. Nobody on this side of the Chamber wishes to condone mercenary activity in any way, shape, or form, but this bill creates a whole lot of uncertainty around the definition of mercenary. During the second reading I said that the most extraordinary thing about the way this legislation has been put together is that when members look at clause 5, where mercenary is defined, they will see that the definition of what is not a mercenary is larger than the definition of what is. Hon Judith Tizard: Why is that surprising? SIMON POWER: It is surprising because it is very bad law when the definition of mercenary is unable to capture the essence of the legislation in a way that secures certainty for those interpreting it. I say to the Minister that it matters because the only way this legislation can be clarified is to include an extensive definition of what is not a mercenary. If that principle were applied to all the interpretation sections of all the bills that went through Parliament, one can imagine the chaos that would ensue in interpreting law. It is not good enough to have a definition at the crux of the legislation that has to be corrected and clarified by defining further on in the interpretation section what a mercenary is not. For example, if we were to use a parallel piece of legislation around—to pluck a subject out of the air—Auckland roading, we would then find ourselves, on this principle, defining what is not a road, instead of what is a road, to make sure the definition of a road is clear. That is an entirely unsatisfactory way for this House to pass legislation. It is evidence of the fact that, in the end, the Foreign Affairs, Defence and Trade Committee and the Government were unsure about the meaning of mercenary and how to define the concept of a mercenary, and were convinced, I believe, by the number of concerns that were raised during the select committee process that their definition of mercenary as presented was nowhere near good enough. The only way to fix that, obviously—using the collective wisdom of the select committee, the Government, and the officials—was to tell the world what a mercenary is not. That is wholly unsatisfactory when it comes to interpreting law, wholly unsatisfactory when it comes to applying law, and wholly unsatisfactory if one happens to be a mercenary. Mercenaries now find themselves in a position whereby not only do they have to not satisfy one test, but they have to also satisfy the other test to ensure they are not captured by this legislation. This is sloppy legislation. This is a sloppy definition, and we on this side of the Chamber say that the Government should do a better job of defining what evil or wrongdoing it wishes to capture, as opposed simply to defining what it is not, in order to capture that perceived wrongdoing. The UN itself has had difficulty with this concept. It has had a series of reports presented to it that state: "This is really hard, and we don't know how to define what a mercenary is. We accept that the current arrangements are unsatisfactory." So how does the New Zealand Parliament resolve that? It says: "It's all a bit tricky, so we will say what a mercenary is not." That is totally unacceptable. Debate interrupted. VISITORS Australia—Deputy Speaker, Parliament of Victoria The CHAIRPERSON (Ann Hartley): It is my pleasure to inform members that Mr Peter Loney, Deputy Speaker of the Parliament of Victoria, Australia, is within the precincts of the Chamber. I am sure members would like to welcome him. 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14249 MERCENARY ACTIVITIES (PROHIBITION) BILL In Committee Debate resumed. Part 1 Preliminary provisions (continued) JILL PETTIS (Senior Whip—Labour): I move, That the question be now put. Dr the Hon LOCKWOOD SMITH (National—Rodney): This Mercenary Activities (Prohibition) Bill, and, in particular, Part 1 that we are speaking to now, is really important, and should not be treated lightly by this Parliament. There are a number of things that trouble me about Part 1. The first is that clause 3, "Purpose", does not tell Parliament or New Zealand when the mercenaries convention was concluded or drawn up. It states: "The purpose of this Act is to implement in New Zealand law New Zealand's obligations under the Mercenaries Convention." I think it is relevant to New Zealanders to ask: is this a convention that was drawn up in 2003—last year? I do not think it is, is it? Is it a convention that was drawn up in 2000? Was it drawn up in 1999, perhaps? That would make it 5 years old. Maybe if it were 10 years old it might still be relevant, but if it were 10 years old, that would mean it had been drawn up in 1994. But I do not think it was drawn up then. I think it was drawn up in 1989, if I remember rightly. The question that has to be asked of this Labour Government is: what on earth has suddenly provoked it to implement a convention drawn up in 1989 that none of our allies and partners has actually implemented? That was 15 years ago. Simon Power: I was in my second year at university then. Dr the Hon LOCKWOOD SMITH: My good colleague Simon Power tells me he was in his second year at university in 1989. In 1989 Dr Cullen had the chance to implement it. He was the Deputy Minister of Finance in the then Labour Government. Hon Dr Michael Cullen: I was not. Wrong again. Dr the Hon LOCKWOOD SMITH: He was. Hon Dr Michael Cullen: I was the Minister of Social Welfare in 1989. Dr the Hon LOCKWOOD SMITH: It was probably 1990; I beg the member's pardon. He was a senior member of the Labour Government that could, if it wanted, have implemented this in 1989 or 1990. What has happened 15 years later that has suddenly provoked the Labour Government to implement this, when clearly it is tricky legislation? Members should look at the countries that have actually implemented it: Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, Croatia, and the list goes on. I do not want to spend too much time on that because there is some important detail here that we need the Minister in the chair, Judith Tizard, to answer, and I realise we may not get many more calls. What I would like the Minister to respond to is this. The Foreign Affairs, Defence and Trade Committee put a lot of time into looking at the definition in clause 5. We heard from respected academics in this field of international law who advised us on the definition and on how the UN saw the definition, and as to what other countries are trying to do about this issue. At the final analysis, when the select committee was considering this legislation, I asked the expert advisers to the select committee whether the definition would enable people who had not sworn an oath of allegiance to the country for whom they were involved in hostilities to be defined as a mercenary. This is an important issue, and I would like the Minister in the chair to advise the Committee on it. Even with the changes made at the select committee to the definition of a mercenary, is it correct, the way the definition now remains, that if a person in the employ of a country—a sovereign nation—to assist in resolving hostilities in that nation 14250 Mercenary Activities (Prohibition) Bill 29 Jun 2004 has not sworn an oath of allegiance to that nation, that person would be caught up in this definition of a mercenary? I can tell the Minister that on 25 March this year, which is the date of the last notes I have from the select committee on this very issue—clause 5, the definition of a mercenary—I asked specifically what would be required to make it quite clear that someone is employed to be involved in hostilities, as distinct from someone who is an automatic part of the armed forces of a sovereign nation involved in hostilities. The answer I got was that the person really would have to have sworn an oath of allegiance. There have been cases in history—in fact, we were advised that even the Secretary- General of the United Nations, Kofi Annan, considered sending mercenaries to deal with the disaster in Rwanda. This definition is hugely important and we deserve an answer from the Minister. Hon DAVID BENSON-POPE (Minister of Fisheries): I move, That the question be now put. STEPHEN FRANKS (ACT): I look at the definitions in Part 1 with some curiosity. Having started my political career from the left, we had a number of heroes. We believed that the people who went off with the International Brigade to fight Franco in Spain were heroes. Later I learned about the Flying Tigers, who were the only help for the Chinese against the Japanese. I could name many others who had an honourable tradition, an honourable career, as mercenaries—right back to our Scottish forebears who fought for most of the kings in the Hundred Years War and the Thirty Years War in Europe. But now that we are in the Committee stage, I look at this as a technical matter. The definition seems to say that it will be OK for New Zealanders to fight in rich countries' wars but not in poor countries' wars. If they are in a rich country's war, the amounts they will receive, and be happy to receive, might be less than those received by the locals. It seems to say that it will be all right for Fijians to go, because they will take small amounts of pay, but not for New Zealanders. It seems to say that the status quo can be preserved, but not those who oppose a barbaric or dictatorial status quo. Curiously enough, if a party that is fighting does not have any combatants and makes all its combatants mercenaries, then that too seems to be OK, because there will be no one else to be adversely compared with. This is a piece of legal nonsense as far as I can tell. The compensation test seems to me to be made for avoidance, and made to suit the interests of those who are in power—the establishment—wherever this might be applied. Has the Minister considered whether there is a distinction between private gain and collective gain? For example, it seems to me quite possible that we could make sure that payment goes out collectively and avoid the intended purpose of this provision, if mercenaries are worried about what New Zealand is going to do to them. How will this Government distinguish the situation of the pilots and the engineers who go off to help a group like the Flying Tigers the next time such a group is needed somewhere in the world to protect desperate people from a barbaric enemy? Will they have to rely on the Attorney-General, trying to commit in advance, saying that they will not be prosecuted? What about when it is the Government's own interests—as indeed President Roosevelt had in having the Flying Tigers operating in support of the Chinese, who otherwise would have been left facing a barbaric invasion by the Japanese completely without international support? Why would a Government pass something like this bill in advance when it has absolutely no idea to whom it might apply and whether it will serve its interests? When I look at these definitions, I see that they are badly drafted. I had a look to see which lawyers might have been responsible, and I see that our committee membership 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14251 seems to have been dominated by that worthy Peter Dunne, with the assistance of Tim Barnett, Keith Locke, Martin Gallagher, and the Hon Matt Robson—international statesmen all of them, and all of them with great knowledge of how despotism has been beaten back in the past! We need an explanation from the Minister in the chair as to why those people would have decided to assist Helen Clark's retirement plans. What possible reason is there for subjecting ourselves to a United Nations obligation like this, when in the Pacific we have no idea of what we may need to support ourselves over the next 5 or 10 years? It may well be that it is in New Zealand's interests to ensure that there is mercenary support if we do not want to have open conflict with whoever is supporting the other side in our backyard. If, for example, we fear that Indonesia is causing trouble somewhere and we do not want to take them on directly, of course we will want mercenaries to be in there making sure it is not a walkover. Yet for the sake of her retirement job with the United Nations, we sign up to this kind of tripe. I say to the Minister that we need an explanation of what lies behind bad drafting, and behind definitions that are so palpably oriented to support the status quo. I would like to hear from a politician why the left, which used to stand up for people in trouble, now wants to help the enemy. GEORGINA BEYER (Labour—Wairarapa): I move, That the question be now put. A party vote was called for on the question, That the question be now put. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Motion agreed to. The question was put that the following amendment in the name of Dr Wayne Mapp to clause 5 be agreed to: to add to subclause (2) the following paragraph: (c) within the meaning of subsection (1)(a) if he or she is employed directly within the armed forces of a party to the armed conflict whether or not they are paid more than any other persons of similar rank or specialty. A party vote was called for on the question, That the amendment be agreed to. Ayes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Noes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Amendment not agreed to. The question was put that Part 1 be agreed to. A party vote was called for on the question, That Part 1 be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Part 1 agreed to. 14252 Mercenary Activities (Prohibition) Bill 29 Jun 2004 Part 2 Mercenary activities SIMON POWER (National—Rangitikei): I look forward to this being the first of my three calls on Part 2, because this is the part of the bill where we get to discover, as a Committee of the whole House, the actual, I guess, detailed impact of the disgraceful and sloppy drafting we saw in Part 1 relating to the definition of "mercenary". Part 2 contains issues relating to recruitment—which I know my colleague Ron Mark from New Zealand First is very keen to cover in some detail in one of his three calls on this part—as well as the financing of mercenaries. I know my colleague Dr Wayne Mapp is also going to spend extensive time this afternoon working his way through those particular clauses. I also know that my colleague Dr the Hon Lockwood Smith is very keen to walk the Committee through the training of prospective mercenary clauses, and the effect that those clauses will have. It is clause 13 though, and the issues surrounding jurisdiction, that most interests me. The reason for that is to return to the commentary on the bill by way of a link from the jurisdiction clauses contained in Part 2 and look at just how widely subscribed to this convention, and therefore this legislation, is. My colleague Dr the Hon Lockwood Smith got part-way through taking the Committee through those countries that have ratified this convention. At this stage of the debate, it is worth asking the question that the National and New Zealand First members of the Foreign Affairs, Defence and Trade Committee included in their minority report, and it is this: why would we bring in domestic legislation, which is ill-defined and sloppily drafted, that gets us ahead of those countries that we would normally involve ourselves with at the point of armed conflict or the like, in particular, the US, the UK, and Australia, that have not signed or ratified the convention? But we can all breathe a sigh of relief because although the US, Australia, and the UK have not signed this particular convention, Costa Rica has. What a great relief it is for the New Zealand public to know that we will be signing up to legislation, which, fortunately for all of us, Uruguay has considered important enough to sign up to! We simply ask this question, and perhaps we could ask the question directly of the Minister: why would we as a country ratify sloppy legislation when the UN itself has said that the definition involved is inoperable, cannot be used, and is unworkable? So what do we do? Well, the Labour Government might believe that this is political leadership. It also thought that telling the world that we lived in a benign strategic environment was political leadership. Well, it got that one pretty badly wrong. I suggest that we now find ourselves signing up to a particular piece of legislation that no equivalent country to New Zealand has signed up to, and that no country with which we have traditional and historic links has signed up to. The question for the Minister in the chair is simply this: why would we sign up to and pass domestic legislation for an ill-defined concept of mercenary at the same time that countries like Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, Georgia, Libya, Mali, Togo, and the Ukraine have signed up to it? This is just ridiculous. The Minister sitting in the chair needs to take the opportunity to get on her feet and answer these questions. Why is New Zealand ahead of its traditional friends and allies on this issue? RON MARK (NZ First): I have the only answer to Mr Power's question—which quite clearly the Government does not want to answer. It is that this Government truly does see New Zealand as being part of the Third World, banana republic community. Look at us! Dr the Hon Lockwood Smith pointed out that this agreement, which we are now legislating into our books, was actually drafted and signed on 4 December 1989, and that one of the signatories to that agreement was Libya. Members should stop and think for a moment. How much credibility does one place on a piece of legislation, 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14253 outlawing mercenaries, that was signed by Libya, when on 21 December 1988 that country blew an aircraft out of the skies over Lockerbie? Yet here we are—accepting the Libyan signature as some sort of badge of honour and as something we should aspire to represent. I would say: "You are joking; you are seriously joking!" And on 17 April 1984 Police Constable Yvonne Fletcher was shot dead by Libyans. So I am expected to stand here and accept Mr Gadaffi, with his administration, as my guiding light and mentor, and as the architect of this legislation—which I should endorse because he complies? We are not serious, surely! This legislation is a piece of politically correct nonsense. It is unenforceable. Let us go through clause 7, "Recruiting person to be mercenary". Does this Government seriously believe that those recruiters who come to New Zealand—looking to recruit former members of the police's Special Tactics Group to go and work in Iraq—will front up to the Customs Service and say they are here to recruit people "for the purpose of taking part in hostilities in an armed conflict—"? Of course not! Recruiters will say they are here to recruit people to go and do some security work, and if those people happen to be tied up in armed conflict, then so be it. But no one will admit to it; everyone will lie. But the real tragedy is that the work those members of the New Zealand Police are currently doing in Iraq is dangerous, good work. If we expect the Iraqi people to come out of that horrible mess, which we witness every night on television, then it will be through the hard work and dedication of men and women in uniform, and of other men and women—international citizens—who are prepared to put their lives on the line for the free world and for democracy, and who are paid to do so. I take huge offence at the bunch of trendy-wendy, pathetic liberals who stand in this Chamber and criticise those people, yet who have never once in their entire lives ever—or ever intended to—put on uniforms, picked up rifles, and gone out there to do the very same work that guarantees them the freedom to sit in this Parliament and pass the stupid sorts of nonsensical laws they pass. [Interruption] Mr Benson-Pope tries to interject, but I challenge him as to why he has never put on a uniform or served his country in a conflict. Mr Nandor Tanczos laughs. He enjoys the freedoms espousing his rather interesting views on life, because the opportunity to do that was given to him with the blood and on the backs of men and women whose names are represented by the battle honours around the walls of this Chamber. I say to Mr Benson-Pope: "Don't preach to me about wanting to serve New Zealand. Your track record is one of pacifism and peacenik activism." That is what this legislation is all about. It is nothing to do with protecting New Zealand's security interests. It is about politically correct nonsense—something that will make sure Helen Clark is a front contender for Kofi Annan's job when the position becomes available, because she will be able to go out there to campaign and say: "Look at all the wonderful legislation I passed in New Zealand when I was Prime Minister." This bill is truly nonsense and rubbish from the Dark Ages. Yes, we want to get rid of the Mike Hoares of the world and there are ways of doing that. I give the Government a clue: it should go and look at what the British Government is doing in respect of regulating the international industry that provides contract officers and personnel. JILL PETTIS (Labour—Whanganui): This bill is called the Mercenary Activities (Prohibition) Bill. Every day in Parliament we commence with a prayer, although that is not so at the moment because we are in urgency and there is a slightly different format to the usual start at 2 o'clock. Part of the prayer includes the phrase: "putting aside all personal interests"— Dr the Hon Lockwood Smith: Private and personal. 14254 Mercenary Activities (Prohibition) Bill 29 Jun 2004 JILL PETTIS: I am sorry: "all private and personal interests,"—and I say to Mr Mark, who has just resumed his seat, that I am sorry we did not have the prayer today. The reason I have stood to speak on this bill is that I have to tell Mr Mark I suspect the speech he has just concluded was so loaded with personal interest it has to have some sort of response made, in order to achieve some sort of balance. This bill is quite simply— Ron Mark: I raise a point of order, Madam Chairperson. I take that comment as a personal slur on my integrity, and I do not mean to sit here and allow it to go unchecked. I demand an apology from that member now, through you. I have taken deep offence at that; it is outrageous. The CHAIRPERSON (Ann Hartley): The member has taken personal offence. I think the matter has been debated quite widely, and the member himself has made reference to it. However, the member has taken offence so I ask the member on her feet to withdraw that implication. JILL PETTIS: I am very happy to withdraw it. I have to say though that I suspect that the speech the member has just given bears very little relevance to what is actually in the bill and a lot more to his personal experience. This bill quite simply states that it is an offence to recruit, use, finance, or train mercenaries, or to participate in a war or act of violence as a mercenary. I was a nurse. I have a great passion for health issues. That member was a mercenary. He has said so himself in this Chamber. He has a great and passionate interest in issues military to do with mercenaries. If he takes offence at that, I have to say there is something wrong with him. I did not do anything as a nurse that I am not proud of. I was proud to be a nurse, and that is why I talk about issues to do with health with great passion and honesty—and no guilt. I also have to say that this bill focuses on the types of mercenaries who participate in wars and those who participate in concerted acts of violence, including acts designed to destabilise Governments, with the common thread being that the persons involved are motivated primarily by profit. My father, and lots of my father's generation, went to war, I believe—if there is a right reason to go to war, and I think sometimes there is— with the motivation primarily to achieve peace; they did not go for profit. New Zealand has long opposed the use of mercenaries. There is nothing new in that, at all. It is part of New Zealand philosophical belief. The involvement of mercenaries— Stephen Franks: What about von Tempsky? JILL PETTIS: That is just a bit before my time—as an additional party to a conflict is rarely, if ever, conducive to that conflict's peaceful resolution. I remind that member that when he gets up on his high horse—or as someone said this morning: "He is more hack than horse."—he should remember that some of the things he says are not necessarily objective. This bill is an objective, long-term look at the situation. It is very good legislation, and I ask that member to shuck off his hair shirt for a moment and look at this bill in the way it is intended. It is a good bill. STEPHEN FRANKS (ACT): I have three questions for the Minister in the chair, the Hon Judith Tizard. The first is about clause 7. There is an offence there of recruiting a mercenary, but it does not use the definition of "mercenary". It seems, therefore, to have none of the benefits of the exceptions in that definition. It seems, for example, that someone who recruits a mercenary to work for the United Nations is still caught by the offence— Hon Judith Tizard: United Nations! STEPHEN FRANKS: If the Minister would take a call and answer, that would be great, but if she cares to look at clause 7, she will see it actually does not use the defined term. It restates the offence as recruiting "for the purpose of taking part in hostilities in an armed conflict" for profit, and it seems not to provide for the exceptions that have 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14255 been provided in clause 5. Clause 5, very importantly, says that someone is not a mercenary if the work is with the United Nations or a peace support mission, humanitarian aid, the detection of unexploded mines, and so forth. Why have we left it an offence to recruit someone to go and explode mines, but it is not an offence to go and explode them? I do believe that this is another instance of the hopeless work of the Foreign Affairs, Defence and Trade Committee, chaired by Mr Dunne and dominated by the "nutty lefties", who are so blinded by their hostility to the profession of arms that they do drafting like this. I ask that the Minister seek the advice of her officials, because it seems to me quite anomalous that recruitment is an offence to which the exceptions do not apply. It is quite possible that I have mistaken it, and I would be glad to be told that I have, because otherwise it seems ludicrous. I am also concerned to have an answer on extraterritorial jurisdiction, to know whether it is possible that under the extradition treaty invoked in Part 3 someone can oblige the New Zealand Government to exercise its extraterritorial jurisdiction for the purpose of actually seizing and delivering someone who otherwise would not be taken. If this country is to be a haven for the sorts of freedom fighters whom in the past we have supported—the kinds of people who have stood up against despots and tyrants— we need to know whether, under this United Nations treaty, someone can force New Zealand to use the authority it is so foolishly asserting over its own people to pursue actions overseas that were not offences at the time or in the area where they occurred. It may be that there is a simple answer to that—I do not know. Now that I have got out those two questions I will go back to the bill. It is interesting that the offences of training a mercenary, financing a mercenary, and using a mercenary all relate to the defined term—clauses 8, 9, 10, and 12 all refer to the defined term—but not the offence of recruiting a mercenary. I suspect there has to be some explanation for that. It is very odd for it not to be qualified by the defined term. It may be that it was an accident of drafting, or is due to haste. This measure has been brought in under urgency, when it has been sitting around, after being reported back by the select committee, for nearly 6 months. Obviously, urgency has struck. Does someone have to make a speech at the United Nations shortly? Does someone need an excuse to go there and shake hands at a cocktail party? What possible urgency does this bill have? Are we frightened that there might be some New Zealanders about to head off, and we need to head them off? That would be the third question: why is this bill being dealt with under urgency? Why is it going through these stages under urgency? Is there some rational explanation or is it simply the Labour Government's version of macho? When one does not believe in the armed forces, one bullies people in Parliament—as the Labour whip attempted to do to Mr Ron Mark. Dr Wayne Mapp: A special cocktail party. STEPHEN FRANKS: It would be a very special cocktail party, but the people would be mainly ugly. The member can console himself with that. Dr WAYNE MAPP (National—North Shore): As the previous speaker quite accurately indicated, I guess in the next few days we will see a cocktail party hosted by our legation in New York. Those people who will be attending this fine cocktail party— Simon Power: Will the member be there? Dr WAYNE MAPP: Mr Goff is likely to be there, I suspect. The representatives of Azerbaijan, Surinam, Togo, Turkmenistan—in fact, many of the "-stans"—will also be there. These places are, of course, great bastions of democracy. I have been reading extensively about the cult of personality that is becoming a feature in the "-stans"— 14256 Mercenary Activities (Prohibition) Bill 29 Jun 2004 Stephen Franks: They will have to say thank you because we are not going to send our mercenaries to overthrow them. Dr WAYNE MAPP: Yes, indeed. This bill is an example of political correctness. The Minister in the chair took a call on the last part. I carefully noted when she said that the convention would not have applied to Mr Mark because he was in a support role. He was a company commander in an engineering role in the Sultanate of Oman. That is essentially what she said. She implied that he was not in a combat role, and thus would not have been affected. But the reality, as everyone knows, is that the Sultanate of Oman, Saudi Arabia, and many other countries in the Middle East have had a practice of recruiting from the West—actually, in collaboration with the British Government, the French Government, and other Governments—highly qualified specialists many of whom actually do fight directly in the front line, because they are uniquely qualified. It is those people who are now affected. Everyone who follows these issues knows that it is a great concern of highly qualified special forces of Western armed forces that their personnel are being recruited, essentially, by these other countries, often with the support of the foreign affairs departments of Western countries. Surely it is not sensible that the legislation applies to them. I know that the Government will say it does not apply if a person is a member of the armed forces. The problem—and this is our fundamental dilemma with the bill—is that there is ambiguity or conflict. On the one hand the bill states a person is a mercenary if he or she is recruited, engaged in active hostilities, and paid at a greater rate than other members holding the same rank. but one can hold the same rank only if one is actually in the armed forces. If one were in a private army, then this issue would not apply. So the exclusion—that the bill does not apply to members of the armed forces—is contradicted by the inclusionary words. That is a point that Mr Power raised. There is a tension between who is a mercenary and the set of definitions of who is not a mercenary. The problem is that the two groups of definitions are actually in conflict. That is precisely why I put forward the amendment in the last part—to ensure that someone recruited into the armed forces of a nation but paid more than the locals could not be deemed to be a mercenary. That is our critical issue. Frankly, the way that the legislation is now drafted, and the way that the Government voted against that amendment, leaves that fundamental issue in doubt. We on this side of the House have been consistently saying there is a very good reason why Britain, the United States, France, Australia, Canada, and Germany—many of which countries supply military specialists to the armed forces of Middle Eastern nations and others—have not signed the convention. Because of the way that the convention is drafted, it affects precisely that activity. Dr the Hon LOCKWOOD SMITH (National—Rodney): In speaking to Part 2 of the Mercenary Activities (Prohibition) Bill there are a couple of serious matters on which I would appreciate the advice of the Minister in the chair. Firstly, in Part 2 there are several clauses. The first, clause 7, relates to recruiting a person to be a mercenary, and I guess that is something. But clause 10 makes an offence of training a prospective mercenary. I would like the Minister to advise how on earth that can actually work. If someone in New Zealand is involved in training people for security work, at that stage he or she has no idea whether the trainees will end up in armed hostilities that are defined by this bill as mercenary activities. I would appreciate the Minister's advice on how on earth that is meant to work. If someone involved in— Jill Pettis: That's like saying "I shot him by accident." Dr the Hon LOCKWOOD SMITH: That is pretty dumb, and about what I would expect from a Labour whip who is involved in making legislation like this. One has to ask oneself why such junk legislation is being passed by the Government under 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14257 urgency. The only logical explanation I have heard came from Ron Mark, who reckons that it is to help Helen Clark get the job as Secretary-General of the United Nations. Why else would the New Zealand Government be passing this junk? But I come back to the specific issue, which is how legislation can contain something like clause 10, which makes it an offence to train a prospective mercenary. People involved in the legitimate business activity in New Zealand of training security forces have no way of knowing whether a trainee will end up involved in mercenary activities. If trainees do end up in mercenary activities, a charge could be brought against the person who trained them, because in training people who are now involved in mercenary activities, he or she has committed an offence. How does that make sense? The person doing the training was doing perfectly legitimate security training. I am sure Ron Mark could name several such international businesses. Members should not forget that under clause 13, "Extraterritorial jurisdiction", this training could involve a New Zealander working overseas. If a New Zealander with an international company is involved in training perfectly legitimate people to be involved in security activities internationally—for example, training people to be employed by the United Nations—yet some of those people end up in mercenary activities, then that New Zealander is involved in training people for mercenary activities. As I read this legislation, such people could be charged under clause 10 with training a prospective mercenary. I believe that Parliament deserves to know where the protections are. It does not make any sense at all to have a perfectly legitimate training business caught up in this legislation; we should not blame that business if a trainee chooses to get involved in mercenary activity. Members should not forget that mercenary activity is extraordinarily difficult to define. We know that from the attempts in Part 1 to define it. Members of Parliament may not be aware, but the select committee heard that the kaiser charged the New Zealand soldiers fighting in World War I with being mercenaries. Jill Pettis: Well, he would. Dr the Hon LOCKWOOD SMITH: The Labour member said that he would, but that is part of the problem of defining what is mercenary activity. When it comes to clause 7, mercenary activity has been used to try to bring peace to war-torn parts of this world. I invite the senior Government whip to have a look at what happened in Sierra Leone, because mercenaries were involved there to try to bring some stability to that place. World pressure against mercenaries caused them to be withdrawn, and what happened? The place broke down into civil war. The Secretary-General of the UN himself looked seriously at bringing in mercenaries—clearly defined mercenaries—to try to help with the huge suffering in Rwanda, which none of the members of the UN were prepared to do anything about. None of the members of the UN had been prepared to go into Rwanda or Somalia, and it was going to take mercenary activity to do something. Part 2 is nonsense. RON MARK (NZ First): That was an excellent speech, and I really wish the Government would accept that what we are arguing is that the definitions in this legislation make it unenforceable. It is not workable. It is feel-good. We all know what the Government is talking about. We have known about people like Mike Hoare for years. Yet there are ways in which countries can deal with those issues. In passing this legislation, with all the ambiguity that is contained in it, we scoop up into this net men and women who are doing excellent work—men and women whose morals, virtues, and integrity cannot be questioned. Look at the training. Take, for example, an officer with 20 years' service in the New Zealand Army, who was decorated for his service in Vietnam on behalf of his country, served with the British defence forces, and became internationally renowned as a 14258 Mercenary Activities (Prohibition) Bill 29 Jun 2004 specialist officer. He is recruited into a Middle Eastern country that is struggling to contain its internal security and border security problems. He is recruited, along with a number of British personnel, as a contract officer to train, teach, and command the Middle Eastern soldiers, and soldiers who are recruited from other parts of the world. So he goes to Pakistan, Nepal, and India, puts his net out amongst the wider community within those Middle Eastern countries, and recruits people whom he then trains. The moment they become actively engaged in combat, he is a mercenary. Despite all the good work he is doing to enhance the security of the situation in the Middle East, and to help relationships between his country and the host country—the country that his company has been contracted to support, with the knowledge of the British and New Zealand Governments—suddenly he is a mercenary, and therefore is liable on conviction to face 14 years in jail. We have to get our heads up and look at the situation. The world has moved on. We know what the Government is talking about when it uses the very stigmatised term, "mercenary". Those are people who will go out and do despicable acts, who are brought in only by money and greed, who do not care about the ideological causes or about sovereignty, and who go in for one purpose and one purpose alone. They do not care who their masters are; they just want to earn the big money. My message is that, today, those people are increasingly a very small minority. The vast bulk of the people employed as private defence contractors and security personnel are in legitimate companies that are well known and, indeed, are utilised by Western powers. The problem with this legislation is that it is so ambiguous that it scoops up all those people into the one basket, thereby putting them in a situation whereby they can be prosecuted for the good work they have done because someone has slapped a label on their forehead and deemed them to be horrible, nasty mercenaries of this type. I ask this Government to reflect on the quality of men and women that it trains, and ask itself seriously whether it believes that suddenly, overnight, those men and women who take private contracts, leave the shores of New Zealand, and go to work for private British companies based out of Hong Kong or the Isle of Man, have suddenly had a brain change. Have they suddenly become nasty, horrible, immoral people who only soldier for money? The truth is that no, they have not. They go out to do something they know they can do to make the world a better place for other people, and they do a jolly good job of it. That is why they are so widely sought after. We are throwing out a net with this legislation and its poorly defined clauses that will take in all these people. All it needs is for some malicious person to lodge charges, or to lay a complaint, and suddenly we will have people out there who have been doing very good work for the past 5 years—maybe in Iraq, Kosovo, Cambodia, or Sierra Leone— suddenly facing criminal charges and a possible 14-year sentence. It does not matter where I look through this legislation, it is impossible to enforce, easy to circumvent, and so ambiguous that it should not be passed. The question was put that the following amendment in the name of the Hon Phil Goff to clause 7 be agreed to: to insert in paragraph (a) of subclause (2), after the words "a party to the", the word "armed". A party vote was called for on the question, That the amendment be agreed to. 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14259 Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Amendment agreed to. A party vote was called for on the question, That Part 2 as amended be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Part 2 as amended agreed to. Part 3 Miscellaneous provisions SIMON POWER (National—Rangitikei): I do wish to take a short call on Part 3, because there is a consistent thread running through this legislation of abysmal drafting and of ambiguity over interpretation. It is worth saying that not only do we have this continued debacle with the definition of mercenary and the non-definition of mercenary but under Part 3 we have what I have to say is one of the most hilarious clauses I have read in my time in this Parliament—short though it has been. That clause is clause 14, relating to the "Certificate as to States Parties under Mercenaries Convention". It is worth reading that, because it provides good humour after a day and a half in the Chamber under urgency. For listeners, it is worth getting a sense of the complete waste of time that legislation like this is, when this clause is read through slowly. So, here goes: "A certificate that appears to be signed by,"—I do not know what that means— "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." Now, that is just a shambles. What kind of legislative debacle— Opposition Member: A junk clause. SIMON POWER: —and junk clause, as my colleague calls it, is that? "A certificate that appears to be signed by,"; so it might not be signed, but it might appear to be signed. In other words— Lindsay Tisch: The Prime Minister is good at this sort of thing. SIMON POWER: That is right. It could be that the Secretary of Foreign Affairs and Trade decided to put a pen to paper, but changed his mind. So it may well be that we have an ink dot on the signature line, which is not a completed signature but the paper may appear to be signed. It could well be that the Secretary of Foreign Affairs and Trade changed his mind halfway through his signature, or accordingly signed on behalf of someone else—something that members opposite will know a fair bit about. It strikes me that that is a bizarre way to describe the execution of a certificate. It is pretty straightforward: the certificate has either been signed or it has not been signed. It is like the words: this is a definition of a mercenary, and this is the definition of somebody who is not a mercenary. So why does the clause simply not say: "a certificate that is signed by the Secretary of Foreign Affairs and Trade", instead of saying "appears to be signed by,"? What a load of nonsense! Then it goes on to state that "a State is, or is not,". So now we have a certificate that appears to be signed by somebody, and that could mean a State is, or is not, a party to 14260 Mercenary Activities (Prohibition) Bill 29 Jun 2004 the convention. It goes on to say that if it appears to be signed, and is or is not a member State of the convention— Ron Mark: On behalf of. SIMON POWER: —on behalf of—then that is sufficient evidence. That is just ludicrous. But there is more. The clause goes on to say that all of that means there is sufficient evidence of the certificate—unless the contrary is proved. Well, does that mean: "No, it does not appear to be signed, because I am going to prove that it was not, despite the fact it could be signed, there being sufficient evidence of the fact that somebody else, signing on behalf, could have signed to say the State is, or is not, a member of the convention, on behalf of somebody."? Now, if that is the type of legislation that is running through this Parliament, together with phraseology like: "This is not what a mercenary is but the legislation is designed to capture a mercenary—which we cannot define—so we will tell people what it is not.", as well as certificates that are not signed, or purport to be signed— Ron Mark: On behalf of. SIMON POWER: —on behalf of somebody else, is sufficient evidence, unless one can say it is not sufficient evidence, in which case, whether it is signed on behalf of, or not, means the certificate could, or could not, be complete, depending on whether, or not, it appears to be signed by somebody. Ron Mark: Unless the contrary is proven. SIMON POWER: That clears it up, beautifully! So if I want to travel overseas and become a mercenary, I now know my rights—completely! [Interruption] That is true; compared with the Associate Minister of Transport, I should do a far better job as a mercenary. The one thing we do know about this legislation is that it is sloppy and ambiguous. That is no way to determine whether, or not, mercenaries are indeed mercenaries, depending on whether certificates have been signed as being sufficient evidence on behalf of others, whether, or not, the contrary intention is proved, depending on whether, or not, the certificate purports to say that a State is, or is not, a State party to the Mercenaries Convention. To be fair, this is an absolute shambles. For the Government to pursue legislation that is indeed so messy, so untidy, and so ambiguous is—to be blunt—hopeless, when in fact it is the Government's responsibility to produce clear, unambiguous legislation to cover these types of issues, and it has not been able to do that in this case. And this clause proves that beyond reasonable doubt. I see that the Minister in the chair, Harry Duynhoven, is very keen to engage on this issue— Hon Harry Duynhoven: No, no. I just want to ask: is this member a lawyer? SIMON POWER: Is this a call? Hon Harry Duynhoven: If the member will yield. SIMON POWER: I am happy to yield to the Minister so that we can continue to debate Part 3 once he takes the call. The CHAIRPERSON (H V Ross Robertson): Can I just say that if the member yields, the Minister can reply only to the questions asked, and that is it. It is not a means of transferring a call. SIMON POWER: I am very happy to yield to the Minister, should he wish to answer the question. I am happy to transfer the call. The CHAIRPERSON (H V Ross Robertson): Yielding is not a means of transferring a call. The Minister can only answer questions; that is it. SIMON POWER: Well, I will just carry on. Therefore, I think it is very clear to the House that the Government has failed on two counts with this legislation. Jill Pettis: Just two? 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14261 SIMON POWER: Well, there are more, but we will stick at two at the moment, I tell the senior whip. The first is that the Government has been unable to define what a mercenary is. The second is that it leaves the entire world, not only New Zealand, uncertain as to what the "certificate that appears to be signed" actually means. RON MARK (NZ First): One has to laugh, does one not, to read such a clause. I tell Mr Power that I tried to read that same clause three or four times, and I think his point is well made. I do not, for the life of me, understand why the Minister is not now scratching out an amendment to that, with the assistance of his staff, because it is an absolute nonsense and it is no wonder that lawyers make so much money out there when this Parliament produces paragraphs such as that. I want to come now to clauses 15, 16, and 17. It is interesting that under the heading, "Investigation and prosecution of offences against Act or referred to in Mercenaries Convention", clause 15(1) states: "Sections 16 and 17 apply whenever the Attorney- General receives information that there may be present in New Zealand a person who has committed, or is alleged to have committed, an offence against article 2, article 3, or article 4 of the Mercenaries Convention." Then we get into a whole series of questions that I guess have to be asked, and I am going to ask them of the Minister right now. The first is: what happens when the Attorney-General is told that there is a person in New Zealand who is recruiting people who someone believes will be mercenaries—and, therefore, he is a mercenary—what is to be done? Do we go and knock on the hotel door of the said chap, who might be from the United Kingdom or the United States, or who might well be here at the behest of the CIA or of any of Britain's intelligence agencies, looking to recruit good, competent, highly professional New Zealanders with good moral values and ethics, to go and—say, for example—chuck the Soviets out of Afghanistan after their having invaded Afghanistan? Will the Attorney-General of New Zealand bring to the courts in this land an American or a British officer, or a person operating or working on behalf of the British or American Governments? When the New Zealanders who have been, say, in Iraq doing the work that they are alleged to have been doing are found, what will we say? "The State where the offence was committed was Iraq." Oh, OK. "The State in relation to where the offence was directed or attempted was Iraq." OK. "The State 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 blah blah of the Mercenaries Convention, who was Saddam Hussein." Oh, OK. So we will prosecute that person for overthrowing Saddam Hussein. What is worse is we will prosecute that person for working with legitimate Government agencies as a private contract officer to overthrow some other tinpot dictator in a country that he or she has invaded or taken control of. Will the New Zealand Attorney-General seriously go head-to-head with intelligence agencies of allies who are seeking to make the world a better place through using New Zealanders of good moral and ethical values who have served 25 or 30 years in the New Zealand Army and are veterans of Sierra Leone, Cambodia, and East Timor? Will we seriously throw those people up in the courts, prosecute them under these clauses, and slap them in jail for 14 years? What will be the reaction of the average Joe Blow on the street to that? I suggest that the average New Zealander would say that it is ridiculous and absurd. It is unworkable and there is the potential in the bill for a diplomatic row or argument we do not ever want to have, particularly if on the same weekend the Prime Minister is over there trying to negotiate a free-trade agreement, I suggest. What would then happen to any of the allegations in this spurious, ambiguous legislation—which might even have been maliciously brought—when this Government engaged in another round of free-trade discussions with the United States? Well, I will tell members what would happen. They would be thrown out—or would they? Would 14262 Mercenary Activities (Prohibition) Bill 29 Jun 2004 this Government and Attorney-General seek to make an international political row over such an issue, and accept the consequences of that? Now, I am waiting to hear the answer, because the procedures that are laid out here raise—to me—the potential for a huge diplomatic problem. So we will arrest some of the people who come here looking for good, professional, honest officers and NCOs of integrity to go into places like Iraq to try to rebuild it. Will we tell police officers with exemplary service records that if a charge is laid against them because they have been actively engaged in combat actions whilst being paid more than local people and not being a national or a citizen of Iraq, the moment someone lays a charge back here—despite the fact that those officers might well have been recruited by a British company at the behest of the British Government—we will now charge them and all the people involved? I do not think so. I think this is rubbish. STEPHEN FRANKS (ACT): I was very sorry that in the debate on the last part the Minister chose not to answer the serious question I had raised as to the definition, and in this part the question is material again. That is because I am not confident—and I do not have the background in this area of law, but I am sure the officials available to the Minister do—that New Zealand is not setting itself up in clauses 15, 16, 17, and 18 to be deeply embarrassed. Members will recall the embarrassment for the British Government when General Pinochet was detained essentially at the request of, as I recall, a Spanish court at the instigation of activists in Spain, and the last thing the British Government wanted was to be in head-on conflict with any of the factions in Chile. But in the end, the British Government had enough international clout to do as it thought best for Britain, and the British courts have enough reputation for being independent that—after Lord Hoffman was removed from the House of Lords bench—it was very hard to suggest that anything other than the most honest view of the law was being applied. But what if a similar circumstance were translated to New Zealand? For example, what if the Chinese made a request to us if it is a party—and I am not sure China is a party, but I will assume it is—to hold someone here who it claims has been a mercenary in Tibet, or it claims is recruiting or raising finance to cause trouble for China in Tibet? How would that go with New Zealand? Why would we want to put ourselves into a position where there is an instrument that gives the other State the expectation that it can call on us to chase the people it does not like? What about the Russians in relation toChechnya, the Indonesians in relation to Timor or Aceh, or the Kanaks in New Caledonia? There are any number of people whom we have relationships with—for example, the French Government—who might one day call on us to exercise powers under this legislation that we would much prefer not to have. I have not heard or seen any justification for this. The Foreign Affairs, Defence and Trade Committee's feeble report does not tell members how it weighed those kinds of considerations—if indeed it did. There is absolutely no consideration from the perspective of New Zealand's interests, as opposed to some abstract interest of the international community, so who is looking after New Zealand in relation to clauses 15, 16, 17, and 18? Then I saw that clause 21 means that this legislation is included for the purposes of the Extradition Act of 1999. Now, I do not know whether that is a benefit—I come to this as any ordinary member reading these words for the first time—but I would have expected to be told, and I believe that the Minister ought to tell members, whether this does mean that China could call for the extradition of some poor soul who has offended it in Tibet or in relation to Tibet. So I do not think we should be voting for this. I despise the Greens, and I despise them deeply in matters like this. Those members are very, very prone to self-righteous speeches in this Chamber about looking after the 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14263 benighted and those whom most Western World States consider to be terrorists. But when it comes to a bill in this Parliament that could be used to suppress freedom fighters or to harass people whose politics are unpopular with the Greens' mates, the communists—no; they are in there, boots and all, supporting it. I reckon members will see them vote for this thing unamended. They will vote for Part 3, because Part 3 is the bit they want. They want to be able to hand over people to ensure that the Governments they favour can claim the right to deliver up those who might offend them, wherever they may hide. We may find it could be as embarrassing as somebody's bodyguard coming with a foreign dignitary to New Zealand, who is suddenly hit with a request that he or she be intercepted, arrested, and suffer the fate of General Pinochet. Whatever one may think of him, it was a grave misuse of power to have arrested that man, who had come to Britain for medical treatment, for acts that were not illegal at the time he committed them in his own country and for which he had an exemption. To turn the law into an instrument of foreign policy like this, when it could rebound on a weaker country that has got itself offside with the international community, is stupid. A party vote was called for on the question, That Part 3 be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Part 3 agreed to. Schedule A party vote was called for on the question, That the schedule be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Schedule agreed to. Clause 1 Title Dr the Hon LOCKWOOD SMITH (National—Rodney): We are debating clause 1, "Title", of the Mercenary Activities (Prohibition) Bill. I believe that Parliament deserves to hear from Labour members as to why on earth they seek to pass this legislation. We have already established during the Committee stage of the debate that the agreement the legislation seeks to enable ratification of here in New Zealand was drawn up 15 years ago. The first question I believe Government members should answer is why, after 15 years in which New Zealand has not seen fit to ratify that agreement, we are now seeking to ratify it. One answer could be that the world has suddenly realised that it needs to be ratified. Maybe one answer could be that countries like the United States of America, Australia, the United Kingdom, or any number of European countries—France, perhaps, or Germany—all suddenly see that there is a real problem happening in the world, and say we should ratify the agreement in order to sort the problem out. But that is not the case. Among the countries that have ratified it, our closest allies would be Italy and Belgium. They are the only Western countries I can find on the list of those that have ratified or implemented the agreement. Why on earth New Zealand 14264 Mercenary Activities (Prohibition) Bill 29 Jun 2004 wants to be in bed with Libya has really got me whacked. OK, Libya has at least abandoned its nuclear weapons programme in recent times—we should at least give Colonel Gadaffi some credit for that. Or maybe we should give the United States some credit for it, because if the United States had not got rid of Saddam Hussein, Gadaffi sure as hell would not have given up his nuclear weapons programme. Still, I am blowed if I know why we want to get into bed with the few countries that have implemented this agreement—including Libya. Maybe the fact that Togo has implemented the agreement is the reason the Labour Government says we should implement it, too. There is an even more important issue. Let us not make light of this. The final statement of the majority of the Foreign Affairs, Defence and Trade Committee in the commentary on the bill reads: "There are suggestions, including from the Special Rapporteur on Mercenaries"—that is, the special rapporteur of the United Nations— "that the Convention should be amended or a new convention negotiated to recognise the role of private military companies and regulate them accordingly. We understand that this is a long-term objective that will be pursued through UN processes and is an issue that the Government may address at a later stage." Given that the Labour members on the select committee acknowledge that the United Nations itself does not think the convention is satisfactory and the UN's own special rapporteur says it will not work, why is Labour now passing this bill under urgency here in New Zealand, 15 years after the convention was initially drawn up, when no other countries that we are involved with in any defence activities are doing the same thing? Parliament deserves an answer on that before the Committee stage is abandoned. I believe that the Minister in the chair, Harry Duynhoven, or another Labour member—or a United Future member, as I note United Future supports this legislation, too—should explain to the Committee why, when the UN itself says the convention is not satisfactory, New Zealand intends to pass this legislation to ratify it. That makes no sense, at all. If the UN had said that although there had not been a big take-up of the agreement and there had not been widespread ratification, it still believed it was important to ratify it for certain stated reasons, maybe then there would be an argument for doing that. But where is the evidence of that? The UN is telling us that the convention is not very satisfactory and that something else should be done, but Labour says it knows better than that and will ratify it. RON MARK (NZ First): There, again, is the point. I plead with the Government to listen to the arguments. The bill's ambiguity is such that maybe it should be titled— since we are discussing the title—the "We're so very confused that we don't know how to define what a bad mercenary is in comparison with a good one that we're going to pass legislation that tries to define what a mercenary is not, although we're not really sure that we've got it right and the United Nations is telling us that it too doesn't believe the definitions are sustainable, stand up, stack up, or are enforceable Bill". What does it take to get people to listen? As I think about Mr Franks' speech, I am drawn to remember the representations that have been made to Parliament by the Falun Gong. Is that what the Greens want? Do the Greens now seriously want this legislation to be used by the Chinese to have the Falun Gong arrested and tried or extradited because the Chinese deem those people to be a subversive element within their country that is engaged in recruiting mercenaries—or, as the Falun Gong may say, in recruiting converts to a belief? Is that what the Greens support? This legislation has so many hooks in its back end in Part 3 that can be misused to cause us huge international embarrassment that it is not worth passing. The dangers are there, and they have been flagged. The Greens have probably another hour to consider Part 3, in particular, seriously before they cast their vote. The "United Poodle" party— 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14265 well, who knows? It is a case of sit up, beg, lie down, roll over, and play dead because Helen Clark says so. The United Future members will just do as they are told. They do not have a coalition agreement, and if they had any agreement of any worth, this bill would not be going through, for one reason and one reason alone: it is unworkable. It is too ambiguous. Dr Lockwood Smith was perfectly correct when he said that the Labour Party acknowledged, as the commentary on the bill states, that the Special Rapporteur on Mercenaries' and the United Nations' views on the convention are clear. It is not enforceable; it is not workable. It is too full of ambiguity. The title of this bill should be "You've Got to Be Joking Mercenary (Prohibition) Bill", because it is not workable. I re-emphasise that when talking about Part 3. The countries that have not ratified the convention, as Dr Lockwood Smith said, include Australia. Who are our major trading partners? Who are the people we most rely on for our growing economy? Australia, the United States, Britain, Singapore! Excuse me, have any of them signed this treaty? Do any of those countries allow regulated private companies to work in the security field? Yes, they do. Have they signed the treaty? No, they have not. Will we therefore put ourselves in the situation where one of those people who comes here to recruit people to go overseas, work for that person, and do legitimate, good work will be prosecuted, arrested, and detained by us? It may well be that that person is a representative of one of a country's internal security agencies. It may well be that that person is a representative of a company that the Government has ticked and approved as being a company with moral values that does nothing to jeopardise the interests of a free and democratic world, and therefore he or she is the type of person who should be contracting personnel to go into Iraq, Sierra Leone, or Cambodia. But those people will not fit within this definition. Even worse, we now have a definition of what a mercenary is not, and a sort of a definition of what a mercenary is, and those definitions do not quite stack up. Once we get into the courtrooms and we are dealing with vexatious litigants, how will a person prove he or she does not fit within the mercenary category? The room in this legislation for dragged-out legal actions, for diplomatic embarrassment, and for the inappropriate harassment of Falun Gong members is so broad, so wide, and so available as to make it not worth passing. I would simply say to members that they should walk with caution, take a breather, take time out, and reconsider this bill. A party vote was called for on the question, That clause 1 be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Clause 1 agreed to. Bill reported with amendment. Third Reading Hon HARRY DUYNHOVEN (Minister of State), on behalf of the Minister of Foreign Affairs and Trade: I move, That the Mercenary Activities (Prohibition) Bill be now read a third time. This bill implements into New Zealand domestic law the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries, which entered into force in 2001. The bill criminalises the conduct of mercenaries and the recruitment, use, financing, and training of mercenaries. It allows New Zealand to demonstrate to the international community that we are committed to 14266 Mercenary Activities (Prohibition) Bill 29 Jun 2004 stamping out the use of mercenaries, and to show our support for the growing concern internationally that the use of foreign mercenary forces can impede the exercise of the right to self-determination and also violates human rights. New Zealand has long recognised the impediment that mercenaries can cause to the peaceful resolution of conflicts. In the Bougainville crisis New Zealand opposed the use of foreign mercenary personnel by the Papua New Guinea Government. We argued that the crisis would be resolved only through a comprehensive peace process, and we are pleased that has happened. It only confirms our belief that mercenary activity should be prohibited. Although there has been some criticism of the definition of "mercenary" used in the convention, it is nevertheless important to become a party to the convention in order to plug a gap in New Zealand's law. This bill covers what we would term "true" mercenaries—that is, what people have traditionally envisaged by the term "mercenary". The convention is not aimed at covering all the people who may sometimes be loosely referred to as mercenaries in today's world. That is outside the scope of the convention, and outside what we see as the appropriate focus of this bill. Our concern is to put in place provisions that proscribe the form of mercenary activity that has been recognised as being of greatest concern. We see this bill as a useful and viable first step towards encompassing at least those generally regarded as true mercenaries. Some people have claimed that the definition contains too many elements. Of course, in the context of this legislation it is intended that only a small number of people will be caught by the definition, so it needs to contain more, rather than less, detail in order to ensure that it does not incidentally catch others. Changes have also been made by the Foreign Affairs, Defence and Trade Committee, to obtain greater clarity in the definition. For example—and this addresses some of the points raised by Opposition speakers—it is now spelt out that people on peacekeeping missions who are carrying out mine clearance, delivering humanitarian aid, and providing policing and security services that protect individuals or property are not mercenaries. There have also been calls internationally for the convention to be amended so that the definition more accurately reflects today's reality, including the use of so-called mercenaries in criminal activities such as arms and drug trafficking. By becoming a party to the convention through the passage of this bill, New Zealand will be better placed to actively contribute to international discussions around the appropriate scope of the term "mercenary", and to influence any negotiations concerning amendments to the convention. The bill also includes measures relating to international cooperation in investigations and prosecutions, which are important to ensure that individuals can properly be brought to justice. It was pointed out during the select committee process that few of the usual like-minded countries to New Zealand have become party to the mercenaries convention. Although that is true, New Zealand needs to make its own decision as to whether it wants to ensure that mercenary activity is outlawed in this country and whether the obligations in the convention accord with New Zealand's view that the use of mercenaries should not be supported—as they do. Some concern has also been expressed by members that this convention is not relevant. In reply to that comment, I would say that mercenary activity needs to be tackled at the international level and domestically, and that this convention provides us with the opportunity to manifest our commitment to that end. An issue was also raised—and I depart from the Minister's notes here—by Mr Franks. I think Mr Franks' concern has been reduced as a result of his conversation with the officials and myself, in that he has been told we still have protections for those who might otherwise be extradited. 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14267 Accordingly, the Government supports this bill. We do not want New Zealand to be seen as a safe haven or a soft spot for mercenaries, and this bill will ensure that that does not occur. I commend the bill to the House. SIMON POWER (National—Rangitikei): I thank the stand-in Minister, the Hon Harry Duynhoven, for his comments on the third reading, but they still have not resolved for members on this side of the House the three or four main issues that we raised at the second reading and extensively throughout the Committee stage. If the Committee stage had been a tennis game, I would say that it was probably 40:love to the Opposition because I do not recall a Minister sitting in the chair, taking a call, and answering any of the issues raised by Opposition members during that time. There are four outstanding issues. First is the definition of "mercenary". The Hon Harry Duynhoven tried to convince the House, in his contribution on the third reading, that it was all a bit tough and a bit tricky and that we did not really want to capture anybody who was not whatever a true mercenary is, so for that reason the definition had to be somewhat more extensive. Members on this side of the House say to him that if that is the case, the term "mercenary" should be defined properly. The Minister should not then move on to include a definition of what is not a mercenary that is larger than the definition of what is a mercenary. We say to Government members that we will continue to oppose this bill to its dying moments because the Government has been unable to convince us that the bill is sure enough, unambiguous enough, and certain enough to dispatch our concerns about the definition of "mercenary". The second issue raised by members on this side of the House is simply that we are about to pass domestic legislation ratifying a convention that puts us way out of step with our traditional allies, the US, Australia, and the UK, and finds us in company with countries such as Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, and, as my colleague Ron Mark pointed out, Libya. It seems to members on this side of the House that signing up to such important conventions should be done in, around, or slightly ahead of, in some cases, our traditional and historic friends and allies. That is not the case here. Jill Pettis: This man changed the National Party policy at a regional conference. SIMON POWER: Screeching from the other side of the Houses does not make the member any more likely to address the issues that have been raised by Opposition members. The member who is screeching from the other side of the House should take a call and answer some of the concerns we have listed very carefully, very methodically, and very clearly. The third thing we are concerned about is the continuing trend of this Government to put into domestic law conventions and international agreements that have very marginal relevance to our own domestic circumstances. We have highlighted that problem throughout the passage of this debate. The last issue I wish to raise relates to the certificate as to State parties under the mercenaries convention. In the break, the officials managed to advise me, with the blessing, or consent, of the Minister that the wording contained in clause 14 is a standard-recipe clause used in these cases. I would simply say to members of the Government who are about to vote for this legislation that just because it is done all the time does not make it right. The Government has failed to convince members on this side of the House that this definition of mercenary is sufficiently tight, clear, and unambiguous to create good law. The National Party will continue to oppose this legislation and will vote against it in the third reading for those reasons. RON MARK (NZ First): I rise in the third reading debate to once again make it clear that New Zealand First opposes this bill. Let me make it very, very clear, for the benefit of the senior Government whip: New Zealand First is not opposed to dealing 14268 Mercenary Activities (Prohibition) Bill 29 Jun 2004 with the people the Government is choosing to describe as the true or traditional mercenary. We are not opposed to that. We are not opposed to outlawing renegade private armies that fight for fortune, and not for ideology, the integrity of the sovereign State, or its borders. We are not for those people. We will assist any Government that brings to this House sane legislation that seeks to deal with those people. However, we are against legislation that is ambiguous—so ambiguous and so broad in its net that it scoops up people the Government says it does not intend to scoop up. Indeed, the Government, by its own words, in the inclusion of amendments to this legislation, has gone out of its way to try to deal with the problem the United Nations says exists with the convention—that problem being that it is hard to define what a true mercenary is. The Government has recognised that problem to the extent that it has tried to include paragraphs—big paragraphs—to try to define what a mercenary is not. The problem is that those definitions are still ambiguous. In this world, which has moved on since 4 December 1989, the use of private armies and private companies in security work has absolutely exploded across the world. Legitimate Governments, sovereign States, and democratically elected leaders to this day are using, more than ever, private companies to put people in to assist countries to preserve their democracy and sovereignty through the use of private, contracted, defence personnel. Our reading of this definition wraps those people up, and improperly so. The Minister raised a number of issues, with the true mercenary one being a big argument. I have consistently asked the Government what the urgency is about this legislation and who brought it to the Table. When we asked the officials at the Foreign Affairs, Defence and Trade Committee nobody could answer the question: why are we doing this? What is the pressing urgency? When I ask why we are debating this bill under urgency, a very clear reason should be given as to why this matter must be dealt with now, but there is not. It only leaves the cynics to presume that maybe other motives are in play. If the Government wanted to deal with arms and drug trafficking, that would be fine—so does New Zealand First—because that is about organised crime. I believe that every member in this House would want to bring down organised criminal networks. We do not need this legislation to do that. We need better security relationships with our traditional allies and with our trading partners, and that brings me to my next point. Who signed up to this treaty? Whom are we throwing our hat in with? Libya! Excuse me! Libya signed the agreement on 4 December 1989, when on 21 December 1988 it blew a Pan Am aircraft out of the skies over Lockerbie, killing everybody on board. Is that a credible signatory? The only thing this legislation does is bring our integrity into question. Why should we be hopping into bed with people like Gadaffi and telling the world that he is a leader in the campaign again mercenaries? He is not, never has been, and never will be. For us to be throwing our hat in alongside of him brings disservice and discredit to New Zealand, not credit. Who else is a signatory to that treaty? Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, Croatia, Italy, the Maldives, Qatar, and Saudi Arabia. Traditionally, they have always used contract personnel, and to this very day they still do. The next question I asked the officials was what compliance test had ever been conducted on these outstanding leaders of the international community—like Gadaffi and Croatia. What compliance test has been run over them? What measures and what tests were conducted to see that they are indeed complying with the convention that they would have us support? The answer is none. There has been no compliance test, and no measure, and we have no idea of their level of collusion with mercenary companies that the Government describes as true mercenaries. We have no idea. We are 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14269 signing up to fluffy, feel-good legislation that we cannot enforce, and if we do, we will run the risk of scooping up people whom we should not be attacking. The test of the credibility of this convention lies in the fact that the United Nations itself questions its value. The United Nations wants to work with the Labour Government of Britain towards regulating the industry, and so gaining better control in a more legitimate and appropriate fashion. For the life of me I do not understand why this Labour Government, which looks so fondly on Tony Blair as a wonderful Labour leader and a fine example of Labour Governments, does not listen to him. This Government should pause for a moment to listen to what Tony Blair's Government has to say. Tony Blair has put his finger on it. He said that that is not the way to deal with the issue that we have quite rightly recognised. That saddens me—no it does not, really, because I know a heck of a lot of people out there who used to vote Labour and who do not agree with this nonsense. They do not agree with the logic. They do not agree with passing law under urgency that is ambiguous, unenforceable, and therefore meaningless. I shall go to the final area of concern from New Zealand First's perspective. I refer to the international implications of New Zealand now seeking to be party to, or allowing itself to be forced into, arresting, detaining, deporting, or extraditing people whom another country says are mercenaries, who are not here recruiting converts to Falun Gong but who are recruiting mercenaries who have the aim of going back to China and undermining the sovereign State of China and its legitimate Government. What a horrible position to now be put in—and all for what? There is no gain here. One risk that lies in here and has not been dealt with is the diplomatic risk of embarrassment at being at loggerheads with the people with whom we trade and on whom our economy depends, all because we want to be alongside Libya, Qatar, Saudi Arabia, and Mauritania. Well, I am sorry, but that is not logical. That does not make sense, and this House has better things to do. This Government has better legislation, which New Zealand First will support, sitting in the wings and waiting to come to the House. Instead, it is here dealing with this nonsense. New Zealand First opposes this legislation. LARRY BALDOCK (United Future): I rise to indicate United Future's support for the third reading of this legislation. We listened to the debate throughout the Committee stage, and did not hear any arguments put up by Opposition speakers that would cause us to change our position of support. The bill was in large part guided through the Foreign Affairs, Defence and Trade Committee by the Hon Peter Dunne, who has a vast amount of experience in foreign affairs, and we in United Future stand behind him in supporting the third reading. STEPHEN FRANKS (ACT): I rise for the ACT party to record our opposition to the passage of this bill that criminalises mercenaries. As earlier speakers have said, this bill has nothing to commend it to New Zealanders. There was apparently an argument that appealed to the majority on the Foreign Affairs, Defence and Trade Committee that the bill is in the interests of the world community. It is not easy to see even then why that should be so. We heard nothing from Government members during the Committee stage to reassure those of us who are concerned about the very long tradition of brave people who have made their living by fighting—sometimes for ill and sometimes for good— other people's fights. We heard no comment about or response to the fact that this law would have criminalised the people who manned the Flying Tigers, which provided the only assistance the Chinese had for some years in their battle with the most awful foe, the Japanese. There was no attempt to explain why New Zealand should put itself in a position whereby, had this law been in force at the time of the Japanese aggression on China, we would have been obliged to arrest and hold those pilots, should they have 14270 Mercenary Activities (Prohibition) Bill 29 Jun 2004 come to New Zealand, and to hand them over to the authorities in the north of Japan— that is as the situation seems to me when I look at this legislation. I heard no answer to the concern I expressed that if there had been technical experts who were being paid more than Franco's troops, they could not have assisted the International Brigades. I met a woman—I think it was last Friday evening—who must have been 85, and who had been in the International Brigades. She was a New Zealander passionately committed to the cause of socialism, and when Franco's troops, assisted by Nazi planes, were overrunning Spain, she took herself off—to the great alarm of her father—to assist in Spain. She happened to be a nurse, so would not have fallen foul of this law. But anyone who had been prepared to defend Guernica from the German planes would have been paid, just as the Flying Tigers were. Hon Marian Hobbs: They didn't get paid. STEPHEN FRANKS: We have this awesome stateswoman, Marian Hobbs, saying that they would not have been paid. Why were the Flying Tigers paid when they were trying to defeat the Japanese? Does that mean that because they helped the Chinese patriots against Japan they should be criminals, but that those in the International Brigades should not? Of course, with any money the International Brigades would have employed people to help with servicing. As in almost every modern war, people are needed to service equipment, and those people would be caught under this legislation I asked also for clarification as to how this bill could be in New Zealand's interests, when it exposes us to the potential for requests from big and menacing northern neighbours—perhaps from Indonesia, which does not like our attitude to Aceh. If there are some New Zealanders out there who fall foul of the Indonesians, or if there are some Aceh refugees down here who are raising money to try to defend their kith and kin, this measure says we should hand them over. Why is that in our interests? Why is it in our interests even to give such countries a weapon to beat us around the ears with? Sure, the officials can say to us that we do not have to, and that the Attorney-General can stay a process; sure, the officials and the Minister can say there is always an opportunity for people to go to court to try to defend themselves against extradition. Yes, there is, but they still have to make sure they do not fall within the tests. These definitions are fatuous. They are so poor that after saying what the conduct is that represents people as mercenaries—and basically it means those who are more highly paid than the people they may fight alongside—they then state that a number are not mercenaries, even though they are doing those things. So we get subclauses (2) and (3) of clause 5. I have also had assistance—and I thank the Minister for the advice from the officials—on the meaning of clause 7. I was concerned that it made recruiting a wider offence than that of being a mercenary, and I am not reassured. Clause 7 does not have the qualifications that appear in clause 5. It does not have what I believe to be essential exceptions to the mercenary definition, and therefore we have an even wider opportunity for some malign Government to use it. I am indebted to Mr Ron Mark for his comparison with the attitude of the Chinese Government to Falun Gong. I understand that China is not a party to this treaty, for which we can be grateful. Of course, it could become a party to it at any stage, and we imagine it would be an extremely cynical party that would use these provisions in the same way that it misuses other statements of intent, and in the same way that it is trying to renege on the promises it made to Hong Kong. This is entirely unnecessary legislation, or if it is necessary, that necessity has not been explained. We have a Government that loves to go off to attend battle commemorations, a Prime Minister who will not miss any opportunity to be 29 Jun 2004 Mercenary Activities (Prohibition) Bill 14271 photographed alongside old soldiers, and a Government—her Government—that is paying no attention to the old soldiers in this House who are attesting to the honour of mercenary activity. We have a Government that may well need to sponsor and use people who can go and fight—or who can support others fighting—in our region. Our region is not benign. There are many competing interests. There is a power vacuum—or there would be if the Australians had reneged as disgracefully as New Zealand has on defence commitments. We have a near vacuum in some areas, and it may well be that mercenaries are the best way in which we can support those who share our values. This bill will make that a very difficult thing to do. Hon Rick Barker: So if you do it for money it's OK? STEPHEN FRANKS: Mr Barker, braying as he usually does, did not bother to take a call. We will not hear him make a speech, but he brays that doing it for money is wrong. I take it that the member is here out of altruism. I take it that he has not been banking his pay cheques. Does that taint everything said in this House by the member? Does that make what would otherwise be worthy, brave, and courageous activity all wrong? Ron Mark: If they're supporting communist ideology, it's OK! STEPHEN FRANKS: It is OK if it is supporting communism—I thank Mr Mark. Mr SPEAKER: The member will come back to the bill, please. STEPHEN FRANKS: The contribution made by the Ministers or from any member on that side has been conspicuous, indeed! The only reason offered in this entire debate for passing this legislation is that fighting and being paid is somehow not appropriate. But this bill does not actually do it. The only offence here arises if some people are paid more than others. If people are alongside a conscript army, or beside the poor kids in Africa who are forced to fight for nothing, then they are mercenaries, but if they are alongside some highly paid Arab soldiers, who could easily be paid more than them, then it is not mercenary activity. Could the Government please justify that? There are plenty of calls in this debate. I am sure there will be space for it. I long to hear it. We would give leave if the Government needed more time. We would love to hear an explanation of just how this bill can be in New Zealand's interest. There has been no explanation throughout the debate. A party vote was called for on the question, That the Mercenary Activities (Prohibition) Bill be now read a third time. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Bill read a third time. SECONDHAND DEALERS AND PAWNBROKERS BILL Second Reading Hon RICK BARKER (Associate Minister of Justice), on behalf of the Minister of Justice: I move, That the Secondhand Dealers and Pawnbrokers Bill be now read a second time. This bill radically reforms the legislation relating to both second-hand dealers and pawnbrokers. It is part of a package of measures being implemented by the Government to combat property crime. When this Government was elected in 1999 it committed itself to cracking down on burglary. For too long burglary had not been treated as a serious crime. Since then, 14272 Secondhand Dealers and Pawnbrokers Bill 29 Jun 2004 burglary cases have dropped from around 75,000 cases per year to around 60,000 cases per year. That is a significant improvement. Further, the resolution rate for burglary has also improved from just 11 percent in 1999 to 17 percent last year. That is a huge improvement, and we intend to do better. Those improvements reflect the support this Government has given to the police, through record police numbers, a record police budget of more than $1 billion a year, and an increased police focus on burglary as a serious crime. This bill follows the Government's recent toughening up on DNA legislation, which means that DNA evidence can now be used to link suspects to burglaries and to improve further the resolution rate for those crimes. This bill has two main objectives—first, to make it harder for criminals to dispose of stolen goods through second-hand dealers and pawnbrokers and, second, to make it easier for the police to recover stolen goods or solve property crimes. Both the Secondhand Dealers Act and the Pawnbrokers Act are hopelessly outdated laws. They do not reflect either the modern industries they are supposed to be regulating, or the sorts of goods that are of particular interest to burglars and, therefore, to the police. For example, the Secondhand Dealers Act still concerns itself with the disposal of fur coats and gramophones instead of computers, cellphones, DVD players, and the like. There have been few amendments to either Act since they originally came into force. Reform is now urgently needed. There is currently no requirement for either second-hand dealers or pawnbrokers to verify the identity of their customers. Under the bill, both second-hand dealers and pawnbrokers will be required to verify the identity of people who sell or pledge goods to them—in most cases, by sighting an approved photo ID. That will make it harder for people who knowingly try to pass on stolen goods, and it will assist the police in tracing where the stolen goods ending up in dealerships have come from. Under the bill, second-hand dealers and pawnbrokers will be required to comply with various record-keeping and labelling requirements in order to keep track of the origins of goods in their possession. The Law and Order Committee recommended a number of changes to those provisions, which will simplify the requirements related to record- keeping whilst ensuring that the information available to the police is of high quality. With regard to retention requirements, the bill replaces the outdated list of furs, suits, and gramophones with a new and more generalised list of second-hand goods that must be retained for 14 days. That list includes items that are frequently targeted by burglars, such as compact discs, computers, cameras, and so on. The definitions are fairly generalised, in order to accommodate the future popularity of goods that might not yet be in common circulation. Retention of those goods for 14 days will give the police an opportunity to ascertain whether the goods have, in fact, been illegally acquired and passed on to dealers. The bill provides for the licensing of second-hand dealers and pawnbrokers. One licence will now cover both second-hand dealing and pawnbroking. It also requires key individuals associated with second-hand dealing and pawnbroking businesses to be licensed in their own right. The select committee has recommended a number of changes to clause 6, which sets out who is to be regarded as engaging in the business of second-hand dealing, and who is not. Those changes improve the clarity of that clause. Compliance costs for second-hand dealers and pawnbrokers have been kept as low as they reasonably can be, while being mindful of the objectives of the legislation. Although the reforms envisaged by this bill are primarily aimed at making it harder for criminals to dispose of stolen goods and easier for the police to solve property crimes, the bill's provisions also have a consumer protection component, particularly in relation to the duties of pawnbrokers. Pawnbrokers will now be required to retain goods 29 Jun 2004 Secondhand Dealers and Pawnbrokers Bill 14273 pledged to them for a 3-month minimum, unless they are redeemed before that date. After that, if a pledge is unclaimed they will be obliged to offer it for sale. The bill specifies restrictions on how the pledge might initially be offered for sale. If the redemption price is not reached at that initial offering, the goods may then be sold by any means the pawnbroker chooses, as long as that is calculated to reach the best price. The committee recommended that the bill be amended to make it possible to offer the unredeemed pledge by Internet auction as well as public auction, at the initial offering. That recognises that the Internet auction is a common way of selling goods today, but still provides a way of selling that is transparent. I also intend to move a Supplementary Order Paper during the Committee stage to allow pawnbrokers to purchase unredeemed pledges they have accepted—providing they do that only by way of an unconditional contract and only if both parties agree. That amendment will introduce some flexibility into the disposal of unredeemed goods, while not unduly placing at risk consumers' interests in achieving a fair price for their goods. Currently, promoters of markets and fairs are not required to keep records of who is selling second-hand goods at their fair or market. This bill places record-keeping requirements on such promoters, in order to assist the police. The requirements are not onerous. The committee recommended that similar provisions be introduced for Internet auctioneers. That reflects the increasing popularity of the Internet as a means of selling used goods, and is a major improvement to the bill. In respect of enforcement, the police will be entitled to search registers, and to inspect any and all goods held by licensees for the purposes of second-hand dealing or pawnbroking. Those are powers the police are already able to exercise under the current law, but the improved information available to them—for example, verified identities of those who supply goods—will greatly improve the effectiveness of such inspections. Penalties in the bill will be much higher than the existing penalties in the Secondhand Dealers Act or Pawnbrokers Act. The maximum financial penalty under the current Secondhand Dealers Act is just $200 and under the Pawnbrokers Act is just $100. Those penalties are far too low to provide any deterrent effect. The maximum penalty under this bill for unlicensed trading as a second-hand dealer or pawnbroker will be $20,000. Penalties for failure to comply with the obligations in relation to, for example, keeping a register, will now be punishable by fines of up to $10,000. This bill represents an important reform that will bring second-hand dealing and pawnbroking into the 21st century. It will make it harder for burglars to dispose of stolen goods via such dealers, and it will make it easier for the police to track down criminals if they try to do that. It is another move by the Government in support of the police to crack down on burglary, and these efforts are already beginning to deliver. I thank the Law and Order Committee for the work it has done on this bill, and I commend the bill to the House. Hon TONY RYALL (National—Bay of Plenty): I do not know whether it has escaped other members' attention but it is very obvious to members on this side of the House that every Minister of the Government who has spoken on a bill this week has given some defence of the Government's management of the law and order system in New Zealand. Every single one of them has ponied out the tired old myth that the crime rate is coming down in New Zealand. The fact is that violent crime is going up, and the chances of people being bashed, mugged, or attacked by someone on parole are the highest they have ever been in this country. I would like to talk about the Secondhand Dealers and Pawnbrokers Bill. I must say that at the Law and Order Committee it was a most interesting bill on which to sit, not so much because of issues related to second-hand dealers but particularly because of 14274 Secondhand Dealers and Pawnbrokers Bill 29 Jun 2004 issues associated with pawnbrokers. For those who have not had much experience with that subject, I can tell them it was fascinating to learn about the role that pawnbrokers have played in the history and development of the world. Indeed, Christopher Columbus's exploration of the Americas was funded by the Spanish royal family pawning their Crown jewels. That raised sufficient to enable Columbus to go to the Americas and bring back great wealth and prosperity to the Spaniards. It was also fascinating to hear about the sort of people who use pawnbroking services. We discovered that it is not necessarily poor people under significant financial pressure who use those services; it is often people who just need some assistance with their cash flow. We were told of people from a wide variety of social groups who, for example, would bring in some jewellery or watches to a pawnbroker for a very short period of time, in order to assist themselves with their cash flow. It is clear that pawnbroking is a service used by many people in the community. Select committee members spent a lot of time in trying to assure themselves that the compliance costs that would burden second-hand dealers, pawnbrokers, and those running community craft markets and flea markets involving people who sold second- hand goods would not be significant. We are confident that the changes made should not be an excessive burden on people involved in those businesses. The National Party would like recorded that it has an amendment in respect of clause 54, and I draw members' attention to that clause in the reported-back bill. The provision requires primarily that pawnbrokers who have pledges they wish to redeem, should redeem those at auctions. Now, why do people go to auctions? They go to auctions because they expect to get a good deal—a cheap deal. So what we are doing in this clause is saying that the pawnbroker, in order to redeem a pledge, must take it to an auction, and even if the price is hopeless the pawnbroker still has to accept it—it has to be the price. If the pawnbroker gets no price, then the pawnbroker can look at other options. But if someone goes along to an auction expecting to get a cheap deal, gets a bid accepted, and gets the price of a cheap deal, then that is the residual price or value the pawnbroker gets to defray costs, and the person who owns the asset—the pledger— gets the net proceeds. We do not think that that is good for the people pledging their assets. We think that many pawnbrokers actually want to act in the interests not only of themselves but also of the people who have pledged with them, because they want those people's repeat business. We think there should be an option that says to pawnbrokers that if they reasonably believe they can get a better deal by putting those pledged assets for sale on shelves in their second-hand shops or at their pawnbroking businesses, then they should be able to do that. Auctions are great for cheap deals, but they are not necessarily great for getting the best net proceeds for people who have pledged their assets. So we have an amendment to introduce in respect of that provision, and we look forward to support from other parties for that amendment. I say in conclusion that the National Party is happy to support this bill. We participated strongly on the select committee to get amendments to a number of what we thought were unworkable and burdensome provisions in this bill. I think those have been tidied up. We still have some concerns, but we think the bill goes a long way towards addressing what is an important concern. At the end of the day, the best way to prevent stolen goods from being sold through second-hand dealers, in pubs, or off the backs of lorries is for the community not to buy them. While that may be easy to say, I believe that it would be the best way to actually end those trades. RON MARK (NZ First): I rise to indicate that New Zealand First will continue to support the passage of this legislation, and to congratulate the Government. It is interesting that in the last two bills I have had to debate on behalf of New Zealand First, 29 Jun 2004 Secondhand Dealers and Pawnbrokers Bill 14275 I have made it very clear to the Government that I totally opposed the legislation it brought to this House. I totally opposed the reason and the rationale for it, and I tried my best to articulate New Zealand First's reasons why. I did articulate in the last debate that I thought we possibly did not need to have that last bill in the House. We could have been moving on with legislation the Government had that New Zealand First supported and was keen to see passed into law. This is one such piece of legislation, and I will say, firstly, congratulations to the Government on dealing with this issue, and congratulations to the entire Law and Order Committee. It was something of a revelation. I think this legislation, the updating and amending of the legislation in so far as second-hand dealers and pawnbrokers are concerned, is something that has been at the forefront of the minds of police officers and criminal investigative staff for a very long time. The reasons are very clear. Second- hand shops are places where in the past—and hopefully we will soon be able to say it is in the past—stolen goods were most often fenced, got rid off, and moved on at profit to the underworld, the organised crime elements within our society. Indeed, I have had some very blunt and frank discussions with members of our police force on occasions, and if they had had their way, they would have had certain second-hand and pawnbrokers' shops, particularly in the Christchurch area, shut down and put out of business a decade ago. In their minds, those people are nothing more than a front for organised crime. Regrettably, those sorts of activities stigmatise and bring into disrepute people who are legitimate second-hand dealers and pawnbrokers, who do their very best to cooperate with the police to ensure that nothing illicit passes across their tables. It is an area fraught with difficulties in terms of law enforcement, and it is very timely that this issue is being brought to the Law and Order Committee and dealt with as promptly as it has been. When I say promptly, I see that the bill was introduced to the House on 5 June 2003, and here we are—maybe not so promptly—on 1 July 2004, finally working our way towards the third reading. I suggest we would be much further down the road if we had not had some of other rubbish legislation brought to the House and distracting us. I will simply say that this legislation is good legislation. It has been worked through well. The issues have been well discussed and well canvassed. The select committee worked as a team under the chairmanship of Martin Gallagher and the deputy chairmanship of Marc Alexander, and I think the results are good. I note the Hon Tony Ryall's intention to move an amendment to clause 54. I also note that the select committee unanimously put in a new clause that strikes out the original. I am still of the mind that that new, unanimously agreed clause is the right way to go, but I will listen to the debate and then indicate where New Zealand First will finally come down. But I do think that a public auction conducted by a person who is not the pawnbroker, or the pawnbroker's spouse or de facto partner, or an employee of that particular pawnbroker, is the sensible way to go. It removes conflict of interest, and that is the issue we discussed at some length and the officials tried to work through. But we are listening, and if there are more compelling arguments, who knows, we might be able to support them. I guess at the end of the day—and the comment has been touched on—all of this is no use at all if the law enforcement agencies do not have the resources to deal with organised crime, burglaries, robberies, and those who get rid of, fence, or distribute stolen property. All this legislation amounts to nothing if we do not resource the police accordingly so that they can enforce it. I have huge reservations about whether our police will be able to actively enforce the law and tighten up on organised criminal elements who take advantage of second-hand dealerships, because they simply do not have the numbers. I have huge reservations because we still continue to see policemen 14276 Secondhand Dealers and Pawnbrokers Bill 29 Jun 2004 and women, who are supposedly in the police force to carry out general duties and investigative work, being siphoned off and ring-fenced around traffic policing and quota ticketing. Those are my concerns. Whilst we continue to see that sort of administration within the police force then, I am sorry, but we will continue to see organised crime flourish. I would much rather that this bill was supported by a commensurate all-out attack on organised crime, a move to criminalise membership of gangs and organised criminal elements and seriously put them out of business, thereby reducing the need for us to pay such close scrutiny to second-hand dealers and pawnbrokers, who, in the main, are legitimate, honest folk. New Zealand First will be supporting the second reading of this bill. DEBORAH CODDINGTON (ACT): I rise to speak briefly on behalf of the ACT party. We support this legislation. It is good to see a tidy-up of old legislation with a new piece that is a mechanical, sensible, and practical. In this sort of consumer legislation, we do not have to put up with the usual old garbage that tries to go down the path of a balance of power between the consumer and the vendor, as we saw in the consumer credit legislation. The intent of the bill is to make it more difficult for criminals to dispose of stolen goods. The bill does balance the issues there, because, as Ron Mark said, the majority of second-hand dealers are honourable and honest people, but there are the car-boot sales in the parking lot. The other issue that should be commended in this bill is that the ID requirements are not too onerous. For instance, the bill actually allows the second-hand dealer to confirm identification by personal knowledge. That is, if the client is already known to the dealer, that is enough to comply with the legislation. The dealer does not have to get the client to produce a photo ID every single time he or she buys goods. There is a huge amount of "buyer beware" in this area of consumer transactions. I do not think that we should ever go down the path where we over-regulate and people do not take responsibility for their own actions. That said, we will never totally eradicate the people who say "I bought it off a guy in a pub." or "It fell off the back of a truck." But as I said, the ACT party supports this legislation, and we will be voting in favour of it. MARC ALEXANDER (United Future): I rise for United Future to offer our point of view on the Secondhand Dealers and Pawnbrokers Bill, and will not take too much of the House's time in doing so. Most of my concerns have been set out in Supplementary Order Paper 236, and there are quite a few amendments there. What I would like to do is focus on a few minor areas that I think would make this bill a much better bill. We consider clause 6(2A), for example, to be unnecessarily restrictive in arbitrarily setting 6 or more days, or $2,000 in value of traded goods, as the benchmarks for meeting the criterion of being a second-hand dealer. We think that is restrictive in this day and age, and see no reason why the amount should be quite as low as that. Moreover, clause 44A(2)(a) limits the resale value to a minimum of $40. That is the threshold for separate identification as a single article—that is, in cases where one is selling a CD collection, a set of bottles, or whatever. I think $40 is a little bit too low for that, so I have suggested in my Supplementary Order Paper that we actually look at $100 as being a much more reasonable amount. The sum of $40 really does not cover very much, and anybody who has gone to a garage sale with $40 does not usually come away with very much. If one does, it is not something one wants to keep for very long. It is usually a present for somebody else, or one might offload it for a $5 profit—but I am speaking as a capitalist at heart. Clause 48B and the consequential clause 57(1)(aa) are not supported by United Future, as they impose restrictions on pawnbrokers conducting their activities in premises other than their normal place of business. It seems reasonable to me that if a 29 Jun 2004 Secondhand Dealers and Pawnbrokers Bill 14277 person has had a business arrangement with a pawnbroker over a number of years, and that person becomes incapacitated, or there is some other reason why that person would like the pawnbroker to come to his or her place to conduct business, it seems unnecessarily restrictive, in the normal course of trade, to disallow that. I see that provision as going against the grain of good commerce. At the end of the day it is very good policy to allow pawnbrokers, or any other dealer— Hon Member: Car dealers are allowed to move around. MARC ALEXANDER: Well, car dealers are allowed to move around, but to go to the clients and conduct the business at their convenience is to provide a service, and, after all, that is part and parcel of what good old capitalism can do for this country. United Future does not support clause 54 in its entirety as it places a restriction on freedom to trade on a best-practice basis. And that is exactly what I have been talking about: the customer should come first, as every good capitalist knows, and if securing the sale means going to the customer's place of business to conduct business, then that is the way to do it. It is service, after all, that hospitality in this country prides itself on. We will be supporting this bill all the way through the House. I would like to thank the members of the Law and Order Committee for working together very constructively. It is a good bill. It is a bill that is being pushed forward by Labour very reasonably, and it addresses a lot of the problems people have had with pawnbrokers and second-hand dealers. For the most part it is legislation that I think will stand up and will not need immediate amendment. So United Future will support it. Bill read a second time. Instruction to Committee Hon RICK BARKER (Associate Minister of Justice), on behalf of the Minister of Justice: I move, That it be an instruction to the Committee of the whole House on the Secondhand Dealers and Pawnbrokers Bill that it take the bill part by part. Motion agreed to. In Committee JOHN CARTER (Senior Whip—National): Despite the instruction given by the House, I seek leave of the Committee to have one wide-ranging debate and take the bill as one. The CHAIRPERSON (Hon Clem Simich): Leave has been sought for that course to be followed. Is there any objection? There appears to be none. Is it also the wish of the Committee to take the votes on the provisions of the bill as one question, but with separate questions on members' amendments? Leave has been sought for that course. Is there any objection? There appears to be none. Clauses 1 to 78, and schedules 1 to 3 Hon RICK BARKER (Associate Minister of Justice): There are two amendments that I would like to talk about, but, firstly, I thank the Law and Order Committee for doing an excellent job. It worked very well and strengthened the bill. Mr Ryall's amendment would add a new paragraph (c) to clause 54(2). I can sympathise with the intention of the amendment, but I am inclined to be against it, because it does not help the transparency of the process. It states that the pawnbroker may sell the goods in any other way that can be reasonably shown to achieve a realistic price for the goods. We believe that it is important that the process be transparent and that there is opportunity to test the market as to the real value of the goods. Clause 54(2) provides that the pawnbroker must at least put the goods to auction once. It is a public auction, so there is an opportunity to test the market value of the goods. If Mr Ryall's 14278 Secondhand Dealers and Pawnbrokers Bill 29 Jun 2004 amendment goes through, then we will subvert the transparency of the process, and there will not be the ability to test the market value of those goods. So I am disinclined to support that amendment. Supplementary Order Paper 236, in the name of Marc Alexander, makes a number of amendments. I am not particularly inclined to support his amendments, because they seem to shift the balance, which I think is what the member intends to do. But the select committee has come back with recommendations about how much should be paid— how much should be lost between the pawnbroker and the person who seeks to pawn the goods. His amendments seek to shift the balance backwards in favour of the pawnbroker. I am very much inclined to stick with the select committee's recommendation, and, as far as I am concerned, the original percentage should stand. The question was put that the amendment set out on Supplementary Order Paper 236 in the name of Marc Alexander to clause 44A be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 35 New Zealand National 27; United Future 8. Noes 83 New Zealand Labour 51; New Zealand First 13; Green Party 9; ACT New Zealand 8; Progressive 2. Amendment not agreed to. The question was put that the following amendment in the name of the Hon Tony Ryall to clause 54 be agreed to: to add to subclause (2) the following new paragraph: (c) the pawnbroker may sell the goods in any other way that it can reasonably be shown to get a realistic price for the goods. A party vote was called for on the question, That the amendment be agreed to. Ayes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Noes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Amendment not agreed to. The question was put that the amendment set out on Supplementary Order Paper 236 in the name of Marc Alexander to clause 54(2) be agreed to. Amendment not agreed to. The question was put that the amendment set out on Supplementary Order Paper 236 in the name of Marc Alexander to clause 54(3) be agreed to. Amendment not agreed to. The CHAIRPERSON (Hon Clem Simich): The next amendment to clause 54 set out on Supplementary Order Paper 236, in the name of Marc Alexander, is to omit and substitute subclause (4). This amendment is out of order as it is the same in substance as that of the Hon Tony Ryall, which has already been decided. The question was put that the amendment set out on Supplementary Order Paper 236 in the name of Marc Alexander to clause 55(2) be agreed to. 29 Jun 2004 Secondhand Dealers and Pawnbrokers Bill 14279 Amendment not agreed to. The question was put that the amendment set out on Supplementary Order Paper 236 in the name of Marc Alexander to clause 55(3) be agreed to. Amendment not agreed to. The question was put that the amendment set out on Supplementary Order Paper 236 in the name of Marc Alexander to clause 55(4) be agreed to. Amendment not agreed to. The question was put that the amendment set out on Supplementary Order Paper 236 in the name of Marc Alexander to clause 56 be agreed to. Amendment not agreed to. The question was put that the amendments set out on Supplementary Order Papers 225 and 235 in the name of the Hon Phil Goff be agreed to. Amendments agreed to, and clauses 1 to 78, and schedules 1 to 3 as amended agreed to. Bill reported with amendment. Third Reading Hon RICK BARKER (Associate Minister of Justice), on behalf of the Minister of Justice: I move, That the Secondhand Dealers and Pawnbrokers Bill be now read a third time. It is with considerable personal pleasure that I see the Secondhand Dealers and Pawnbrokers Bill reach its third reading. I say personal pleasure because while I was living in a Wellington suburb, my flatmate, Mr Peck, and I were robbed continuously. People kept breaking into our flat. They seemed to use it as some sort of department store. They took beer, sausages, ice cream from the fridge, CDs, stereo— [Interruption] It was none of my parliamentary colleagues. The point is that we made numerous complaints to the police, and the police were very attentive to the issue. However, we were unable to make any inroads. In frustration, the police officer showed me what he was up against. We then took a tour of a number of second-hand dealers and pawnbrokers in the local area—I will not name the area—so that I could see whether I could identify, by this stage, one of the three video players we had had stolen. I have to say that life has its parallels. Some years ago as a young male I went shooting in South Westland, and the Inland Revenue Department was very concerned to gets its tax on the amount of venison that was being taken. They were concerned at people coming along and getting paid in cash and not identifying themselves or their rewards. They then got themselves a book. I saw this when I turned up with a friend of mine to take in a carcass for the first time. We were shown the book, which we had to fill in, and I was gobsmacked to see that former President of the United States John F. Kennedy was alive and well in South Westland and doing very well shooting deer. He was a good marksman, as was Mickey Mouse, who must have taken time out of Toon Town to go to South Westland and enjoy the fantastic scenery. Obviously, the record was a fantasy. I saw another fantasy when I went around with a police officer to look at the books of the second-hand dealers and pawnbrokers. It was pure rubbish, yet the law had been complied with. There were videos, which then had a price of $900, that had been turned in for $100 or $150. The constable said to me that that did not represent reality, and I said no, it did not. All the labels were wrong, and it was the shonkiest process I had ever seen for the supposedly legitimate recycling of stolen goods. It irked me then, it irks me 14280 Secondhand Dealers and Pawnbrokers Bill 29 Jun 2004 today, and this long-overdue legislation will give the police a very effective weapon to deal with burglars and thieves. I think this is a fantastic day and it is long overdue. I congratulate this Labour-led Government, and all the other parties in this House that supported it, for enacting this fabulous legislation. BRIAN CONNELL (National—Rakaia): I can assure the last speaker that having also hunted down in South Westland, I made sure I carted out all my carcasses, all my venison, and all my velvet, and duly registered my right name when I was trading them in for cash. I remember that in the Haast pub in those days venison could be bartered for other goods, and the member probably knows what I am talking about. I have seen him there from time to time participating, as well. I turn my attention to the Secondhand Dealers and Pawnbrokers Bill and start by saying that I want to commend, as other members have, the outstanding work that members of the Law and Order Committee did, and the way in which they came to grips with legislation that was at times rather complex. I have to recognise my colleague the Hon Tony Ryall for his outstanding contribution to the select committee. It was often through his guiding hand that we got the result that we are now basking in here today. I will not mention the Hon Tony Ryall's name again; I will just leave him to bask in the glory of his achievement. The central theme of this legislation is the registering of pawnbrokers and second- hand dealers, in order to close down the fencing of stolen goods. This is commendable, and the National Party supports it. As the Hon Rick Barker has pointed out, this is a problem that is not insignificant, and we should not underestimate that. It might surprise members of this House to know that New Zealand has one of the highest rates of property theft in the world. Our police tell us that the bulk of those goods are disposed of through second-hand dealers and pawnbrokers, either knowingly or unwittingly. We can learn from our friends in Australia. The Western Australian Parliament introduced legislation that is very similar to that which has been suggested here today, and that has seen the incidence of burglary in that state reduced by 30 percent. The message is very clear. If we close down those fencing channels—the distribution networks—we severely curtail burglary. The demand cannot be satisfied so it essentially diminishes. The theory is right. The select committee has done its work. It has put in front of the House legislation that would be effective except for one critical flaw. That flaw is simply that we do not have the policing resources to breathe life into this legislation. It is not a matter of not having enough resources; it is a matter of where and how those resources are being deployed. Too many of our police personnel are being directed to hassle otherwise law-abiding motorists as they go about their business, simply so that this Government can continue to stuff its greedy fists full of more dollars. I say to the House that that is an issue that we will have to address as a Parliament if legislation like this is to have any credibility. It gets worse. I have information stating that at times it is taking 4 days after calls are received at the Southern Communications Centre before police are dispatched to the scene of a burglary. The answer is very clear. One only has to travel the road between Christchurch and "Ash Vegas" to see not just one, not two, not three, but five police cars on the road at any one time. It is impossible for our police officers to spend their time on the road, booking motorists, and at the same time check second-hand dealers and pawnbrokers. This legislation will not achieve its worthy objective unless that issue is addressed. I am afraid that we are talking about a Clayton's bill unless the police are allowed to properly police what is intended. The bill introduces tougher licensing and certification regimes for second-hand dealers, pawnbrokers, and their staff. I note—and other speakers have picked up on this as well—that the fine has now moved from $100 or $200, depending on which 29 Jun 2004 Secondhand Dealers and Pawnbrokers Bill 14281 legislation was being dealt with, to $20,000 if a dealer is not licensed. I wholeheartedly agree with that. If we are to have legislation, we should make it enforceable, and make sure that people understand that there is a significant penalty for not being in accord with what is required. The legislation requires dealers to sight IDs, and record the contact details and the signatures of all people selling goods. That is sensible and it has my support and that of my National Party colleagues, as well. I do not want to take up too much of the House's time today, as it has been a long week. I will raise just one other issue that submitters raised through the select committee process, and that was regarding those who were trying to run fund-raisers for schools, etc. Those people were concerned that they would have to go to the trouble and expense of being licensed and recording goods. That was never the intention of this legislation. It was never the intention that people engaged in fund-raisers would be picked up under this legislation. So the select committee moved very quickly and sensibly to ensure that those groups were not picked up. We introduced, as was suggested as a group, that 6 days remain in any 12-month period, but a dollar figure has been attached to it. It is debatable, as Mr Alexander has mentioned, as to whether $2,000 is the right amount or whether it should be higher, but the concept is right. We were trying to strike a level that suggested that these people were not engaged in trading and were simply fund-raising. It was the balance of our opinion that $2,000 was a fair reflection of that. The other point that I would like to raise very quickly is that licences will be renewed every 5 years. That is good because it is a test of character and good citizenship. Things can change over a 5-year period. Having it in perpetuity, we thought, was a flaw, so we moved to make sure that this issue was dealt with. In conclusion, I say that this legislation has the very strong support of the National Party. It has been a privilege and a pleasure to work with such a constructive select committee, and I commend this legislation to the House. RON MARK (NZ First): I am just sitting here pondering that it is amazing that whenever people out there in the public arena discuss what members of Parliament do and what they are like, so often the media and talkback hosts say that we act like a bunch of kids, that people do not want to listen to that sort of nonsense, and that we waste their time. We try to correct some of those perceptions by saying, hang on a minute, bills that are contentious will be contested vigorously by both sides of the House and the cross benches, as is right and proper. But we very rarely hear reports of when members actively work together to solve a problem that exists and we all agree needs resolving, and then come to the House, present the bill, debate it through, and all vote unanimously in support of it. I feel it is a tragedy that so rarely do political commentators highlight to the public the large amount of legislation that goes through this House with unanimous agreement, whereby the select committees have worked determinedly and conscientiously to get the right outcome. This is one such bill, and I have absolutely no doubt that we will not read anything of any substance about it in the papers tomorrow. We will not hear talkback hosts saying that it was great the way all the MPs got together and dealt with an issue that has been plaguing the police for decades—dealt with a piece of outdated, outmoded legislation that had become so inappropriate that it needed dealing to. I doubt very much that I will hear one talkback host tomorrow complimenting the House on the way it has conducted itself in the passage of this legislation. I say "well done" to the Government, and "well done" to the Law and Order Committee—it was a pleasure to work with them all. I say to the police who are out there waiting for this legislation to be passed that there are a number of things that New Zealand First campaigns on very vigorously in support of the police and law and order, 14282 Secondhand Dealers and Pawnbrokers Bill 29 Jun 2004 and that this bill is focused on a law and order issue. On a number of issues, New Zealand First will always challenge the ability of the Government of the day to effectively police our streets. We will challenge it on the numbers of police, because we fundamentally believe that the police are understaffed to do all the work—such as this—that we believe needs to be done. We believe that police numbers should be doubled—end of story—and we have said so. We know the financial implications. We believe that the police are completely under-resourced. Successive Governments have created this situation, and the passage of more and more detailed legislation that requires the police to do more and more work cannot be ignored, so we challenge that. We will challenge the priorities until they are corrected. We have made our solution very clear. Police priorities, in terms of who they are focusing on and what they are doing, need looking at, and we specifically point to highway patrols and traffic safety. New Zealand First has said that it will resolve that issue. Policemen need to be out there checking on pawnbrokers and second-hand dealers, because they know who is fencing the goods. New Zealand First does not want to see the focus on quota ticketing, and to make sure that that does not happen under our governance, we will split that side of the police force right out of the police. It will go back to the Ministry of Transport and the Land Transport Safety Authority. They can look after traffic policing with all the vigour they desire, but the police will be left to do policing. It is a question of priorities. The third area is having the tools of the trade to do the job, and this bill is one such tool. The police need good legislation. They need outdated legislation to be tidied up. The Minister has brought it to the House and we have dealt with it. This is good, and New Zealand First is supporting this bill all the way through, but there is other legislation, like a "Suppression of Gangs Bill", that I want the Government to bring to the table to help the police. Let us have it! Let us put some teeth into those laws that are not enforced, like criminal non-association. We have those laws on our books but they are never enforced. We sit here and watch the very people who burgle homes and organise the fencing of stolen goods through shady second-hand dealers and pawnbrokers. We let them sit behind their huge fences. We let them walk the streets with patches on their backs. We know who they are, and we tolerate them through some misguided belief that we are impinging on their civil right to express themselves openly as members of such "esteemed" organisations as Black Power or White Power. The police need good tools such as this legislation, but I am saying that they need more. A "Suppression of Gangs Bill" would be welcomed by New Zealand First if it would seek—and my colleague and friend Dover Samuels is nodding his head—to wipe out gangs forever. We say that knowing that our whanaunga are an integral part of the gang structure in this country, and we desperately want them dealt to, as do the police. Let us look at other legislation like the confiscation of assets. That would be perfectly in line with this bill. Those gangs that are engaged in stealing, converting, burgling, and then fencing, are all putting their ill-gained profits into investments to improve their lifestyles. They have the nice homes and the nice cars, and they are all very well shielded by inadequate legislation that does not allow the police or the Minister of Justice to go for the throat. We have seen examples in Ireland of how this legislation has worked well. We have seen female reporters shot dead on the streets as a result of gangs seeking to protect their ill-gotten gains, which are often gained by fencing stolen goods through shonky second-hand dealerships and pawnbrokers. This is good legislation. New Zealand First congratulates the Government and all the members of the select committee for the work that has been done, and we congratulate the officials who worked patiently to help us understand some of the intricacies that were involved. I am looking forward to seeing the bill passed. I am looking forward to 29 Jun 2004 Secondhand Dealers and Pawnbrokers Bill 14283 hearing police say: "Thank God, now we can go out there and get into the work." I am looking forward to seeing the police being used more appropriately on the streets, and to more legislation of this type coming to the floor of the House under this Government, so that we can help it. DEBORAH CODDINGTON (ACT): ACT supports this legislation, so I will not waste the House's time. There is nothing I hate more than the sound of my own voice, but I would like to remind people in this House— Government Members: Love your voice! DEBORAH CODDINGTON: Well then, sit down, be quiet, and listen! I remind members—and Ron Mark has just talked about tools for the police to fight crime with— that we are passing legislation that sets out a registry of second-hand dealers. These are people who have done nothing wrong, but they will be registered, and it will be a national database. When legislation comes back before the House at the end of the year that will seek to set up a registry of convicted sex offenders, I hope that members will not go queasy but will support it with the same strength and passion with which they have supported this bill, and with which yesterday they supported a registry of dogs that might bite people. ACT supports this legislation. Bill read a third time. LAND TRANSPORT AMENDMENT BILL First Reading Hon PETE HODGSON (Minister of Transport): I move, That the Land Transport Amendment Bill be now read a first time. At the appropriate time I will move that the bill be referred to the Transport and Industrial Relations Committee, and that the committee have the authority to meet to examine the bill at any time while the House is sitting, except during questions for oral answer and during any evening on a day on which there has been a sitting of the House; and to meet on a Friday in a week in which there has been a sitting of the House, notwithstanding Standing Orders 191 and 194(1)(b) and (c). This Government has a commitment to improving the safety and security of all road users. This bill does that by making the enforcement, operation, and administration of land transport safety law more efficient and effective, in line with the objectives of the Government's New Zealand Transport Strategy and the Road Safety to 2010 strategy. The bill improves the law concerning the responsibilities of road users, traffic offences and penalties, and driver licensing, and fixes some provisions that are unclear, inflexible, unenforceable, or outdated. Although the road toll of 404 in 2002 was the lowest for 40 years, the toll last year was 460, and there have been only slightly fewer road deaths so far this year than at the same stage in 2003. Clearly, with increased traffic volumes we need new initiatives to improve road safety. Alcohol and excessive speed are the two biggest contributing factors to road crashes in New Zealand, together accounting for about 40 percent of all fatal crashes. This bill gets tough on the most serious traffic offenders by reducing the speed and alcohol thresholds for immediate driver's-licence suspension, and increasing the range of penalties for repeat drink-driving, including immediate vehicle impoundment. It also requires a wider group of repeat drink-drivers to attend a drug and alcohol assessment centre, in order to help rehabilitate more drivers whose offending is rooted in a drinking problem. The bill will make the law around driver licensing clearer and more user-friendly. For example, it allows a temporary driver's licence to be issued where a person's licence has expired or been revoked, thus enabling a person to drive for assessment 14284 Land Transport Amendment Bill 29 Jun 2004 purposes. It requires a photo driver's licence to show the original issue date rather than the date that the licence was last issued, and that will help New Zealand drivers wanting to drive or hire a car in other countries. It allows for the suspension of a driving instructor or testing officer in the interests of public safety, and it prohibits driving instruction for financial or commercial gain without a current driving instructor endorsement. The bill enhances the ability of courts to deal with people who repeatedly drive while disqualified. Most people convicted of driving while disqualified are recidivists. Many of them build up so many disqualifications that they see no hope of ever regaining their drivers' licences. They continue to drive and build up further disqualifications. In cases where those offenders present no risk to road safety, the bill will allow courts to impose a community-based sentence, rather than further disqualification, for driving while disqualified. It also enables offenders who have already accumulated long periods of unserved disqualification for disqualified driving to return to court to request a reduction in their outstanding disqualifications on the ground that they can demonstrate to the court that they have attempted to change their behaviour. The bill contains amendments to transport operator licensing, in line with the conclusions of a review of the licensing system in 2001. It simplifies and clarifies licensing requirements, and that will reduce compliance costs for transport operators. The bill also introduces measures to improve commercial drivers' standards, enhance the accountability of taxi organisations, and strengthen offences and penalties. It prohibits anyone convicted of a serious violent or sexual offence from being a passenger service driver. Following consultation with the transport industry and the general public, and in line with a review of the driving hours and logbook system, the bill simplifies that system and introduces a new, simpler definition of work time. It also alters the penalty system, in line with industry concerns, to graduate penalties according to the seriousness of the offence. It increases the use of infringement notices and demerit points for logbook and other record-keeping offences. It retains mandatory licence disqualification for driving- hour breaches of more than 1 hour only. It introduces a new "chain of responsibility" offence to ensure that employers and other industry participants are held accountable if they knowingly allow or cause driving-hour breaches, and it provides for alternative fatigue-management schemes to encourage operators to take greater responsibility. The bill amends provisions concerning vehicles impounded under the Land Transport Act. It reduces the period that storage providers must wait before applying to dispose of an unclaimed vehicle from 28 days to 10 days. That will reduce the cost to storage providers of holding vehicles that are, often, not roadworthy and of little value. Finally, the bill contains a number of common-sense amendments to fix various defects in land transport legislation that make it more difficult to enforce or administer. These include making the criteria for appointments to the Land Transport Safety Authority board consistent with the Human Rights Act, so that appointees do not have to be New Zealand citizens; preventing the taking of a blood sample at the request of an enforcement officer where that would be prejudicial to the treatment of the patient; permitting the release of driver's-licence photographs of deceased persons to their next of kin; empowering police to serve at the roadside a notice of licence suspension on a driver with more than 100 demerit points; clarifying the obligations of a driver who is requested to stop by an enforcement officer; ensuring that driving offences involving injury or death apply both on and off a road; creating an offence of failure to report an accident; enabling rental service operators to charge fees for owner-liability offences back to the person hiring the vehicle at the time; and providing an alternative to full 29 Jun 2004 Land Transport Amendment Bill 14285 vehicle re-inspection when vehicles are ordered off the road for non-compliance with vehicle standards. In addition, the Greens have raised with me the issue of a lack of distinction, in terms of offence and penalty, between persons driving on an expired licence and those who drive without any licence. Their suggestion is that it may be appropriate to have a lesser penalty for driving on an expired licence, on the basis that forgetting to renew one's licence is not as serious an offence as driving whilst never having had one. Currently, the bill contains a provision that states that "unlicensed", in relation to a driver, includes holding an expired licence. However, the Transport and Industrial Relations Committee may choose to examine whether the present lack of distinction is fair and make any recommendations it feels are appropriate. Lastly, I have had the matter of excessive vehicle noise raised with me by Larry Baldock. Should the select committee examining this bill consider it appropriate, it may wish to examine whether the current offence regime for dealing with excessive vehicle noise, including stereo noise, is acting as a sufficient deterrent. If not, the committee may wish to examine what penalties would be suitable for such offences, particularly repeat offences. Although the bill does not address that issue directly, it has now been just over a year since the House passed provisions to deal with boy racers, and it may be time to examine whether future measures to deal with the related issue of excessive noise are needed. In conclusion, I would like to acknowledge the support from the Greens, United Future, and New Zealand First for the bill as introduced. The bill proposes a large number of positive changes to the legislative framework underpinning land transport safety. It will improve safety and help save lives. It will also reduce unnecessary complication and business compliance costs. I commend it to the House. Hon ROGER SOWRY (National): At the outset of what will be a fairly short speech, I want to say to the House that the National Party will be voting for this bill to go to a select committee. The bill needs a considerable amount of work, and the National Party is prepared to work with the Government on some of the important issues of road safety. Like all political parties in this House, we view with concern the road toll. It came down considerably during the previous National Government's time in office, largely due to a combination of a very aggressive advertising campaign on television—at times it was almost too aggressive—and the moves that took place around the issuing of the new photographic licences and that whole new regime of removing people from the road. We believe that that was highly successful in driving down the road toll. That is not to say that there are not other things that can be done, and I particularly want to commend in the bill the provisions around serious traffic offenders, whereby there will be the opportunity for immediate driver's-licence suspension and an increase in penalties for repeat drink-driving. I am not someone who believes we need to race out and lower the blood-alcohol level, or do any of that sort of more extreme stuff. But as someone who often reads the little bit in the paper on drink-driving offences, which are reported on a weekly basis, when I read the convictions I am concerned to see a number of repeat offenders who consistently appear, week after week, in the newspaper. I think that anything this House can do to stop repeat offending by the removal of drivers' licences earlier in the process is something that should be supported, and I also think the requirement for a wider group of repeat drink-drivers to have to attend drug and alcohol assessment and rehabilitation courses is something we need to have. It is no good just to take their drivers' licences away—suspend them—and then let those drivers come back at a later date. We do need a more intensive programme, and they should have to prove they have 14286 Land Transport Amendment Bill 29 Jun 2004 been on the programme before they get their licences back. I personally support that part of the bill, and I hope the House will support it, as well. In terms of the simplification around the driving logbook system, I think it does go some way towards meeting the concerns that have been expressed to me regarding logbooks. I am worried about the increase, or the ability, I guess, to have automatic demerit points for a logbook offence, because I think the issue is that many people may well be outside their driving time when it is not a planned event. I am thinking of the recent example of the floods in the northern part of the Ōtaki and through the Rangitīkei areas, where truck-drivers who were doing really good community work in terms of moving stock and furniture—and they were moving furniture in the Hutt Valley, which was also flooded at the same time—were pinged by the quite petty and frankly, I think, overzealous actions of some traffic police for weight and logbook offences. Common sense prevailed in the end, and those offences were waived. But I do worry about the increasing focus on revenue gathering, and logbook offences are one way that that whole issue can be used by the traffic police. I do not support that. Vehicle impoundment is another issue I want to comment on, because it was quite controversial when it was introduced in the House in the late 1990s, and I am sure the Minister was aware of the debate at the time. In fact, I think it was difficult at the time to keep a certain number of members in the House in order to get that part passed. It was a very close vote, and I notice the Hon Harry Duynhoven laughing at that as well, because I think he was involved in the negotiations at the time. Suffice it to say that vehicle impoundment has worked really well, and I think the Minister is right to ask the committee to look at reducing the time cars are kept. I know that that is a problem; it has been raised with me. Where vehicles have no value or very little value, no one comes to pick them up. They then end up being kept for a long period of time, and the operators who have those vehicles in their yards end up wearing a loss. So from that angle, we need to sort that out. As an aside, I just hope the committee also takes the chance to look at abandoned vehicles. I notice an increasing number of people around the country who have vehicles of little value, and I am not sure whether those things just break down or the owners forget where they are, but one way or the other, the owners just leave them there on the roadside. Traffic officers drive past those vehicles for a week to two weeks, and the vehicles gradually lose bits. If one goes past such a vehicle on a Friday, one sees it is all OK. However, on Saturday one sees the windows are broken, on Sunday the wheels have gone, and by Wednesday it is sitting there as a wrecked vehicle on the side of the road. That is not something that does this country proud. The police need to act on that situation a lot quicker than they do, and I hope the committee will look at that. I think that it is probably just a product of the value of a vehicle, when it is probably not worth the towing fee. I myself have had a car in that category, and I have very fond memories of it. Darren Hughes: Tell us about it. Hon ROGER SOWRY: It is still on the road, actually. I sold it for $300, and it is still being driven by a very proud seventh former. I want to finish by saying that the issues around taking blood samples and some of the human rights issues around dealing with blood samples and breath testing are things we will want to look at quite closely. I am sure there will be varying views in our caucus on those issues, but I am pleased to say that the National Party will be supporting the referral of the bill to the select committee and will work in a constructive way to get it through the House as soon as possible. PETER BROWN (Deputy Leader—NZ First): Towards the end of the week it is becoming a transport week; transport is becoming the flavour of the week. I can see 29 Jun 2004 Land Transport Amendment Bill 14287 Harry Duynhoven smiling, over there. Last night the Minister made an announcement on new funding for infrastructure, and today there is the Land Transport Amendment Bill. I turn to the announcement last night on funding. I have to say to my colleagues in United Future that if they want to put out press releases that attack the Rt Hon Winston Peters and me personally, I would advise them to stick closer to the truth, because we are a little bit tetchy over here at the moment. We will not respond in kind, but those United Future members should stick to the truth. I return to this bill. I think much has been said about it and New Zealand First will not add a great deal more, but I want to raise a few concerns we have and I think this bill will give us the opportunity to look at them more closely. The driver's licence system concerns us, and I see in the bill some areas that specifically address our concerns. I am hopeful that the Transport and Industrial Relations Committee will look at the concerns elderly drivers have. I have a letter here from a lady called Jean Jones that was written to my colleague Pita Paraone, which he passed on to me for a response. She talks of her sister-in-law having to take a computer test for 2½ hours, which cost $236. When she passed that, she had to have a practical driving test with a police officer and a therapist for 1½ hours, which cost $209. That lady had a history of a mild stroke some few months before, but the testing system cost her $445. That is not the way to treat the elderly in this country. It is absolutely deplorable! I am hopeful that we can look at the driver's licence system to address the concerns of elderly folk. It really does put stress on them. I am also keen, as I heard the Hon Roger Sowry say, to look at logbooks, particularly at those for commercial operators. I have seen some logbooks with very, very minor errors in them, and I would suggest they are far more minor than errors that some of us who worked in those occupations made when we filled in our logbooks. [Interruption] Paul Adams, of course, does not make any mistakes, but with the exception of that member I would say we all made tiny errors. I have seen one driver's logbook with a very minor error. To pick it up would have been very, very hard, yet the driver was fined hundreds of dollars. That is not on. Those guys are not academics; they are truck- drivers, and this country is blessed with having some of the best truck-drivers in the world. They are very courteous and, by and large, they know exactly what they are doing. To be fined hundreds of dollars for a minor error in a logbook is not on, so I am hopeful that we can have a look at those sorts of things. I am also keen—again, members have raised this matter—that we look at the provisions for handling people who drive under the influence of alcohol and drugs. I would put some emphasis on the latter. I am not sure how the police pick up people who are under the influence of drugs, but it is being reported informally to me that because we have an MP in this House who advocates drug smoking on an individual basis, we are becoming very, very liberal on the roads. Sue Kedgley: I raise a point of order, Mr Speaker. The member is making incorrect statements in saying we have MPs who advocate drug smoking, etc. The ASSISTANT SPEAKER (Hon Clem Simich): That is not a point of order; it is a debating matter. PETER BROWN: It is a debating issue, Mr Speaker, and I thank you for correcting the member on that. I just want to tell her, because she might have forgotten, that not long ago a press release went out from her party advocating that people go to a park, smoke cannabis, then get in their cars, and go home. Hon Harry Duynhoven: What? That's irresponsible. PETER BROWN: Yes, it is irresponsible in the extreme. I hope we will take a good look at those sorts of concerns. 14288 Land Transport Amendment Bill 29 Jun 2004 I also hope we will take a good look at foreign drivers who drive in this country. That is an area that is becoming a major concern. New Zealand First is on the record as saying that if foreigners drive irresponsibly in this country, then not only will they shorten their holiday or whatever reason they are here for but they will be on the first plane out of the country. I am not talking about minor offences, which might be understandable, I am talking about major offences where some people are doing quite serious antics on the road. New Zealand First is not in the business of allowing people to come to New Zealand and drive "any old how" while they carry on with their holidays. Our attitude is that if people commit an offence of serious proportions on our roads, then out they should go. I am also hoping that the select committee will have an opportunity to look at how we police our roads. We have major concerns about some of the attitudes of the commercial vehicle police and how they handle truck-drivers. I have just referred to the logbook situation, but for some months now New Zealand First has been undertaking a survey—for want of a better term—on road policing. In excess of 90 percent of people who have responded to the survey have told us they believe that the traffic police should be separated from the police. We will pursue that with some vigour. Traffic duties should be taken away from the police and a traffic unit itself should be set up under the umbrella of the Land Transport Safety Authority. The public perception of police officers has gone down quite a lot, because those officers are seen as revenue gatherers, so I hope the select committee will have a good look at how we police the transport system in this country. Our view is that it could be done so much better if the traffic police were under the jurisdiction of the Land Transport Safety Authority, and the police force itself was left to get on with the job of handling criminals. I have said all I need to say on this bill. New Zealand First will support it going to the select committee. SUE KEDGLEY (Green): This is yet another bill—we have had a number of them today—on which there seems to be total support and consensus in the House. Indeed, I would say that seldom have we seen a bill full of so many good ideas and common- sense suggestions, and which I am sure would have the support of almost all New Zealanders. I am sure that New Zealanders would be delighted to know that we will target serious traffic offenders by reducing the speed and alcohol thresholds for immediate driver's-licence suspension. It is a particularly good idea that we will require repeat drink-drivers to attend drug and alcohol assessment centres. I say in parentheses that it was interesting that the New Zealand First representative had barely finished attacking United Future, saying how annoyed New Zealand First members were with United Future and how tired they were of United Future's attacks, when he proceeded to make totally incorrect, ill-founded, stupid attacks on the Green Party. That is exactly the sort of behaviour that brings the House into disrepute. Someone goes on and on about how terrible it is that he or she is being attacked, then turns round and makes exactly the same sort of idiotic attacks as he or she has been complaining about. And, for the record, arguing that people should not go to jail for smoking cannabis but, rather, should attend assessment centres, as is proposed in this bill, and that we should be focusing on harm minimisation, is not advocating for persons to smoke cannabis. Frankly, we are getting very, very tired of those pitiful little attacks from United Future and New Zealand First—just as New Zealand First members say they are getting tired of attacks on them. Let me just set the record straight there. All the suggestions in this bill are basically aimed at trying to reduce speed and driving while under the influence of alcohol, which, as the Minister said, are the causes of so many accidents. This bill seeks to address the underlying causes of the road toll. I 29 Jun 2004 Land Transport Amendment Bill 14289 am sure that everyone will support it; I am sure that all New Zealanders will support it. It is so full of good ideas that we wonder why we did not have most of the proposals in it on our law books many decades or years ago. The only thing I would say in conclusion is that the Minister of Transport talked about a proposal by United Future to put in legislation forbidding excessive noise from vehicles. I think that is targeted at boy racers who have radios on while they drive around. I suggest that surely the House has more important things to talk about than trying to prohibit the few people who drive around making a loud noise. Is this a serious problem? What is the problem we are trying to find a solution to here? That proposal is really a case of going overboard. There is not a huge problem, and, frankly, that sort of excessive regulation is unnecessary. Anyway, that is not included in this excellent set of amendments. We are delighted to support them, and we will be active in the select committee in considering the proposals. I think that most of the submissions will be totally in support of the bill, and that New Zealanders will say we should get on and get them enacted as soon as possible. DEBORAH CODDINGTON (ACT): The ACT party will support the referral of the bill to the Transport and Industrial Relations Committee. However, we will be looking at it very carefully at the select committee. The bill does need to be dealt to in select committee. There are some issues we will be looking at very carefully, along the same lines as Roger Sowry from the National Party signalled. The criteria for appointment to the Land Transport Safety Authority are to be consistent with the Human Rights Act. Surely, appointments to the authority should be made on the grounds that the appointees have the skills, experience, and talent for the position, not that their appointment complies with the Human Rights Act—an Act that is often more correctly called the "Human Wrongs Act". We support anything that tries to get recidivist drink-drivers off the road. They just wreak carnage on New Zealand families, leave behind a huge amount of grief, and more often than not they have absolutely no remorse for what they do. They take no responsibility for their crimes. They are just out there committing them again and again. I do despair sometimes whether we will ever do anything about it by changing the law. Certainly, changing laws and passing regulation does bring about culture changes. However, I think that there is something endemic in the New Zealand psyche, whereby people have a skinful of liquor, they get behind the wheel of a car, and they think they are invincible. They think they can do things that, clearly, they are incapable of doing. In fact, they are in charge of a very, very dangerous weapon. I do not have a problem with people having to spend a lot of money to get a driver's licence, to pass the test. I understand where Peter Brown is coming from. It is difficult for a lot of elderly people, but then a lot of elderly people are very dangerous on the road, too. It has been proved by research recently that drivers who fall asleep repeatedly are just as dangerous as repeat drink-drivers, and a lot of elderly drivers fall into that category. The other issue that concerns me is that it is no use passing laws like this if there are not the resources on the roads to police them—if roads in the areas where it is known that repeat drink-drivers get in their cars are not policed, and I am talking about country roads and country pubs. It is not so much now. One often drives out of Auckland at 6 o'clock in the evening and a booze bus is stopping everyone. People are probably not over the limit, but the police have a quota to fill of potential drink-drivers. They are not the people who are causing the problems. The people who are causing the problems mostly are in Dannevirke, Takapau, West Coast, and all those sorts of places. [Interruption] I am just making sure that members are awake. 14290 Land Transport Amendment Bill 29 Jun 2004 Finally, I agree with Sue Kedgley from the Greens when she was alarmed at United Future wanting the select committee to look at noisy stereos in cars. Sure, these stereos are a nuisance, but should we, as politicians, get into the area of passing laws to ban things that we find a nuisance? I mean they are not actually physically hurting anyone except themselves, and they are not actually breaking the law. It is alarming that we have people in this House who think it is their role to pass laws against people who are just a bit of a bother. But we will be supporting this bill to select committee. PAUL ADAMS (United Future): I rise on behalf of United Future to support this first reading, and I stand in amazement as here we have the two extreme parties in this Parliament—the ACT party on the extreme right and the Green Party on the extreme left—in agreement over a ridiculous issue. It is unbelievable. Here we have somebody talking about an amendment that my good colleague Larry Baldock is intending to put in this legislation to deal with noise from motor vehicles. Now that is 100 percent sensible, because just picking up on a point that Peter Brown made, we do have to have laws in this nation—first because otherwise we would not have a job, and that would be a very serious problem to us all! But the other side of that is that the people who interpret the laws must have a brain, and that is often where we have a problem. Coming back to the noise issue, let us take for example the boy-racer legislation where we stated that a car can only have an exhaust system that is no noisier than the standard exhaust of a normal motorcar. There is a major problem here, because we have an after-market exhaust industry and, as many of the V8 lovers in this House would know, there are people who would just like to fit that little after-market muffler that gives a beautiful sports roar. All of a sudden the legalistic side of the Land Transport Safety Authority comes down hard and all of these people who have sports exhaust systems fitted to their cars are breaking the law. In my personal opinion that is not necessarily because there was anything wrong with the law, but the people interpreting the law do not have a brain. So there is a need to have a look at exhausts in cars. My colleagues who have spoken against this measure may not have had the experience of living in a small suburban Auckland neighbourhood where young people will often wind up their stereos late at night and they cannot be dealt with. I come back to the Green Party and its attack on United Future. I can assure members, as Peter Brown has stated, that if they put out a press release that people are to gather in a park to smoke cannabis and then drive home, then they should get a life. Most New Zealanders would find that totally unacceptable, and United Future finds that totally unacceptable. To me it is almost criminal to put out reports like that. What sort of message is the Green Party trying to give to the young people—or to the older people, as we can see—of this nation? It is not a message that United Future wants to put out. The Greens will have problems with United Future as long as they continue to promote that sort of ridiculous legislation, because we are a party of common sense. United Future supports this legislation and we look forward to discussing it as it goes through the select committee. Bill read a first time. Hon PETE HODGSON (Minister of Transport): I move, That the Land Transport Amendment Bill be referred to the Transport and Industrial Relations Committee for consideration, that the committee have the authority to meet at any time while the House is sitting, except during questions for oral answer, and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, notwithstanding Standing Orders 191 and 194(1)(b) and (c). 29 Jun 2004 Land Transport Amendment Bill 14291 A party vote was called for on the question, That the motion be agreed to. Ayes 70 New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2. Noes 48 New Zealand National 27; New Zealand First 13; ACT New Zealand 8. Motion agreed to. The House adjourned at 5.35 p.m. (Thursday)
Pages to are hidden for
"Parliamentary Debates"Please download to view full document

subset: commoncrawl