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Parliamentary Debates


									                  First Session, Forty-seventh Parliament, 2002-2004

          Parliamentary Debates

                      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

  First Reading....................................................................................................14199

  First Reading....................................................................................................14210

  First Reading....................................................................................................14225

 Second Reading ...............................................................................................14233
 Instruction to Committee .................................................................................14240
 In Committee—Part 1 Preliminary provisions ............................................... 14240

  Australia—Deputy Speaker, Parliament of Victoria ....................................... 14247

 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

  Second Reading ...............................................................................................14270
  Instruction to Committee .................................................................................14275
  In Committee—Clauses 1 to 78, and schedules 1 to 3 .................................... 14276
  Third Reading ..................................................................................................14277

  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
    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
    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
    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
   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
    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
    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
    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
    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
    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
   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.

                                        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
    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
    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
    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
    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
    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
   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.

                            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
    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
   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
   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
    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
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
    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
     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
   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
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.

                 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

                            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
    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
   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
   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
    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
    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
    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
   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
   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.
   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
   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
    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
    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
   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.

                                    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
    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
   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
    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
      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.

                                      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
    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
   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
    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
    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)

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