Hon PHIL GOFF (Minister of Defence) : I move, That the Armed Forces Law Reform Bill be now read a second time. This bill is the product of 4 years of policy development undertaken in consultation by the New Zealand Defence Force. It amends the Armed Forces Discipline Act 1971, the Courts Martial Appeals Act 1953, and the Defence Act 1990 to deliver an enhanced military justice system for the New Zealand armed forces. In doing so it will take into account developments in domestic and international human rights laws, including the New Zealand Bill of Rights Act 1990. It will ensure that the military justice system does, indeed, fulfil the seven vital elements of the military justice system that I referred to when the bill was read for a first time. Those elements are the maintenance of discipline, consistency in all strategic environments, portability, expedition, fairness, efficiency, and simplicity.

The bill was referred to the Foreign Affairs, Defence and Trade Committee in March of this year. The report of the committee and the useful amendments that it has recommended to the House demonstrate the value of the select committee process. I commend the committee for what has clearly been a thoughtful examination of this bill. The committee received four submissions from interested groups and individuals, including the New Zealand Law Society, the Judge Advocate General, and the Deputy Judge Advocate General. I also received some useful suggestions from the Legislation Advisory Committee, which were referred to the select committee and which, in large measure, are now reflected in the bill.

The bill as read a first time inserted a new Part 6A into the Armed Forces Discipline Act establishing the Court Martial of New Zealand as a permanent court of record. Because of the limited availability of new section numbers in that part of the Act, the bill inserted a large number of alphanumeric section numbers, including a new section 144ZZI. The committee has recommended that in order to make the bill more user-friendly to members of the armed forces who are not legally qualified, those provisions should be moved into new Parts 4 to 6 of the bill, with a view to those parts being divided in the Committee of the whole House stage to form a separate bill, which will be the Court Martial Bill. That seems to be a sensible proposal, and the Government supports it.

The bill repeals current provisions of the Armed Forces Discipline Act that permit commanders to overturn or interfere with the decisions of the Court Martial of New Zealand, including the abolition of the board of review. Such powers will now become the exclusive province of the appellate courts, such as the Court Martial Appeal Court. This is necessary to ensure that our system of military justice complies with internationally recognised standards of independence and impartiality, which are reflected in section 25(a) of the New Zealand Bill of Rights Act.

One of the issues raised by the Judge Advocate General and considered by the committee is how the valid and useful contributions that senior members of the defence force can make, and have made, to the maintenance of service discipline could be retained in the new legal environment. There is value in having senior commanders consider the broader issues that often arise in the context of trials by court martial, to determine whether there are measures that might be adopted to prevent the reoccurrence of problems or to improve the conditions and standards of discipline in the armed forces.

To address that issue the committee has recommended the establishment of the Armed Forces Discipline Committee, which will be chaired by the Chief of Defence Force and will include his senior commanders, the Judge Advocate General, the director of military prosecutions, and a representative of the military defence counsel. The Armed Forces Discipline Committee will consider reports on command issues from the senior military member at each trial of the Court Martial of New Zealand. It will also produce sentencing guidelines for the Court Martial of New Zealand, fulfilling a similar role to that of the Sentencing Council, which was provided for by an Act of Parliament passed in July this year. The Government supports this development.

Another issue that the Judge Advocate General suggested the committee should address was how concerns about the outcomes of summary trials might be communicated to the Judge Advocate General so that he or she can, if necessary, refer those cases to the new Summary Appeal Court. The committee has responded to that issue by recommending that the bill provides that any person, whether a service member, his or her defending officer, or even a concerned parent, may refer such matters to the Judge Advocate General. That will be a significant additional safeguard, and the Government also agrees with that.

The select committee has recommended that all judges of the Court Martial of New Zealand have security of tenure equal to that of the Chief Judge and, in fact, of a High Court judge. The Government accepts that that provides a better fit with New Zealand’s constitutional framework and supports that recommendation.

The committee has done some work on clarifying the status of the director of military prosecutions, who will be in much the same position as a Crown solicitor in his relationship with the Solicitor-General.

The committee has also recommended that the role of the national preventive mechanism for service penal establishments under the Crimes of Torture Act 1989 be transferred from visiting officers appointed by the Chief of Defence Force to the registrar of the Court Martial of New Zealand in a new role as inspector of service penal establishments. The Government agrees that that will enhance the independence of the authority responsible for ensuring that there is no potential for torture or ill-treatment to occur or go undetected in New Zealand’s service penal establishments.

I note that the select committee has commended the work of the legal staff of the New Zealand Defence Force in the initiation and the conduct of the military justice review and the modernisation of the law. I have huge respect for people in the legal staff of the New Zealand Defence Force, and I endorse the committee’s comments in this respect.

I also take this opportunity to thank the retiring Judge Advocate General, Mr Peter Trapski, for the excellent work that he has done as Judge Advocate General for the past 12 years. Peter Trapski’s connection with the military justice community stretches back over 50 years to the time when he was a legal staff officer with the New Zealand forces in Malaya. We are fortunate indeed in New Zealand to have people with a depth of wisdom and knowledge in the law as well as a familiarity with the armed services.

As a result of this bill, Parliament will ensure that New Zealand continues to have a highly disciplined and world-class defence force.

Before concluding, I mention—perhaps unusually—that today I had the sad responsibility, together with Dr Wayne Mapp, to attend the funeral of Byron James Solomon, a young sailor with the Royal New Zealand Navy. Byron Solomon was tragically killed last Friday in an accident whilst he was serving on board the Canterbury. I record on behalf of this House our sorrow at the tragic cutting short of the life of this young man, who had so much to offer. I know Wayne Mapp will agree with me that the service today was a huge tribute not just to Byron and his family but also to the family that the navy is for those of our service personnel, men and women, who serve in that service. Byron was a young man with a long tradition of family involvement in the military, including a grandfather who served in the 28th Māori Battalion in World War II and a great-grandfather who served at Passchendaele, the anniversary of which we commemorate on 12 October. I take this opportunity, on behalf of the House, to pass on our deepest condolences to Byron’s partner and to his mum, dad, sisters, and brother, and, indeed, to all of his crew mates who were part of his family on board the HMNZS .

Dr WAYNE MAPP (National—North Shore) : I think, in light of the Minister Phil Goff’s comments, that it would be appropriate that I also record the debt that the nation owes to all of our serving people. I have heard service in the armed forces described by some people as a job. In fact, I heard that very recently from someone who should know better. But, of course, service in the armed forces of one’s nation, whether in peacetime or at times of armed conflict, is inherently risky, and everyone who goes into the armed forces knows that. Those in the armed forces train diligently and rigorously to avoid accidents as much as they possibly can.

Most of what defence people are doing is training for operational service, so it is a deeply wounding tragedy, not just to the family but to the whole Defence Force and the Navy, when such an accident happens. Byron Solomon had joined the Navy just 4 years ago and was very obviously, from today’s funeral service, highly regarded by his colleagues. It was more than just the Navy pulling together; it was his shipmates bonding in unity with the family, with what will now be the memory they will have of Byron Solomon, and reflecting on their future. It was a very moving service. It was certainly poignant, as indeed it was a very moving address, to note that his great-grandfather had served with the New Zealand Army and had been wounded at Passchendaele; his grandfather had been in the 28th Māori Battalion; and, indeed, his uncle is a senior warrant officer in the New Zealand Navy. So this is a family that can look back with pride at service across the generations, and, of course, will remember with pride their now lost son, brother, and partner.

The Armed Forces Law Reform Bill is one of those opportunities that the Parliament has to consider carefully the law and practices that apply to the armed forces, and we get such an opportunity probably only once in every 30 or so years. This legislation was initiated by the New Zealand Defence Force, and the Foreign Affairs, Defence and Trade Committee specifically commends the legal staff—and we noted this in our report quite particularly—for their competence and professionalism. Had the director of legal services for the armed forces, Brigadier Riordan, and his team, and, particularly, the naval commander, not taken the initiative, we would not be dealing with this legislation today. What they are doing is a service to the quality of rights and freedoms that every New Zealander has, irrespective of the occupation he or she performs. We owe it, as a House, to ensure that when people don the uniform of this country, they do not surrender their rights and privileges as citizens. We have to ensure that the armed forces law, which operates in obviously unusual circumstances, reflects those rights and privileges. One of those is to know that one will receive justice in the military chain of command.

This bill is very much about that; it is essentially a modernisation to bring New Zealand law into line particularly with those of Commonwealth partners Canada, the United Kingdom, and Australia. So we now have a much more robust court martial system. I want to make clear that traditionally court martials have had the advice of the judge. The judge has not actually been the presiding officer; the presiding officer is normally a senior officer, not trained in law but obviously trained in command. This bill changes the court martial into a proper court, so that the judge will be the presiding officer, and the members of the board will be acting much more like a jury. So it will feel and look, for the future, much more like an ordinary court.

We see that as a major advance, because in that way there is virtually no risk that one’s rights and privileges would be trampled upon perhaps for the cause of the service at large. An individual’s rights should always stand above those. That is an important change, and one that the committee commended.

The committee, however, was particularly concerned about the role of the summary proceedings where so many issues are dealt with, and where, to be honest, people are sometimes encouraged to plead guilty, to sort of “Get it over and done with; it will go easier for you.”, and so forth. I can understand the pressures for that. It is all done as part and parcel of binding the unity of the team, together, and a difficult legal process may disrupt that. There are enormous pressures around that process to keep things tight, to have a person who may have transgressed, so to speak, kept within the family, by perhaps doing something that is against his or her interests but might, nevertheless, be seen as appropriate for the unity of the organisation as a whole. Some of us have seen that happen in practice, admittedly in a very small way—things like an unauthorised discharge, or something of that nature.

Therefore, the committee decided there had to be some supervisory role, and the armed forces sentencing committee is really intended to perform that particular role. It provides guidelines, and we did see some value in essentially importing the modus and practices of the new Sentencing Council into the armed forces. We saw that as a desirable outcome; it would encourage justice being done in all cases.

We were also particularly concerned that in summary proceedings, people receive the right to legal advice. We have sought, and indeed strengthened, that part of the legislation. We considered seriously, and it is noted in the report of the committee, whether that should be so in every single case, but we decided that in some instances—for instance, a ship at sea during a warlike situation—that may not always be possible. But by and large we expect the person charged to have that right of independent advice; to have that sense that his or her rights will be protected.

I want to touch on perhaps one final point, and that is the role of media freedom. This is obviously another issue that we were concerned should be properly protected. The worst thing that can happen is that justice held in secret is actually no justice at all. Justice, to be trusted, must be open. So we were concerned that the media have the proper access, and we have, I think, struck a proper balance between protecting the security of the nation and providing for open processes of justice. We feel we have modified the bill as presented, in a proper way.

The Minister spent a bit of time going on about letters of sections, and so forth, and it is true we were concerned that the legislation be understandable to people who are not legally trained. One of the things I think is a good thing in the Supplementary Order Papers, which we will be debating, no doubt, in the Committee stage, is that the bill has been broken up into four separate bills. It is very important that the legislation be readily accessible to those people who have to administer it, and that it be structured in an obvious and coherent manner.

In conclusion, the select committee took its task very seriously in this instance. We asked a lot of questions of the legal advisers, probably more than they were expecting, I suspect, but we understood that this is a once-in-a-generation opportunity to get it right. I commend the director of legal services for the Defence Force and his staff for working extremely hard and well with the select committee to strengthen what was already a very good bill—and I want to make that clear. It strengthened the bill, and I think we will come out with excellent legislation that the armed forces can rely on with confidence for the next generation.

Hon HARRY DUYNHOVEN (Minister for Transport Safety) : First of all, I agree with Dr Mapp when he says that every 30 years or so Parliament takes the opportunity to modernise legislation regarding the defence forces and the military. Certainly that has been the case. I cannot claim to have been here 30 years ago, but certainly I have in my time seen one earlier occasion when Parliament modernised law regarding the defence forces.

I have had the privilege—as you have, Mr Assistant Speaker—of serving on the Foreign Affairs, Defence and Trade Committee, and I was always greatly impressed by how seriously the committee undertook its task. You might recall, Mr Assistant Speaker, that you, I, and a few other members of this House, led by Mr Graham Kelly, agreed with my suggestion to visit East Timor and witness first hand how our servicemen and servicewomen managed the peacekeeping work there. That visit coincided with the first anniversary of independence. It was very interesting to see just how our legislative framework works in terms of our defence forces, and at that time we were greatly impressed. We were impressed with what our defence forces were doing there, we were impressed with how well they were regarded, and we were really impressed with the arrangements made to ensure the smoothest possible transition to civilian rule there.

As Dr Mapp said, the Foreign Affairs, Defence and Trade Committee takes its role very seriously, as it has with this bill also. I imagine that many members of the public are not very familiar with the Armed Forces Law Reform Bill, but it is basically a technical bill. It is technically important as it reforms the New Zealand military justice system. Although this might seem a little arcane, it is worth noting that the foreword to this bill in the Bills Digest states: “There has been no substantial reform of the military justice system in New Zealand since the Armed Forces Discipline Act 1971 came into force in 1983. Domestic and international developments in human rights law, particularly the enactment of the New Zealand Bill of Rights Act 1990, necessitated a thorough review of the military justice system in New Zealand. The review, conducted by the New Zealand Defence Force, recommended a large number of reforms. Those reforms are reflected in this Bill, which will amend the Armed Forces Discipline Act 1971, the Courts Martial Appeals Act 1953, and the Defence Act 1990. The Bill will also make a number of consequential amendments”.

Although many people might ask what this has to do with them, I think that as we celebrate our country’s contribution and commemorate all those who have given, sometimes, the supreme sacrifice of their own lives in the service of our country, the Commonwealth, and our allies in various conflicts around the world, it is worth remembering that we have not always had the legal frameworks necessary to ensure that our people get a fair deal. You will recall, Mr Assistant Speaker, that some years ago this House debated legislation to pardon those who it was felt, with the hindsight of history and the years and generations that had gone since, had been unfairly treated and executed as a result of decisions made during past jurisdictions—indeed, not only by New Zealand but also by our allies. We have had to grapple with some issues, and that is precisely why we have this sort of legislation.

In the consideration of this bill the Labour-led Government believes that the military justice system should apply the same rights to our armed forces personnel that are enjoyed by civilians in the criminal justice system. The purpose of this bill is to establish an effective and fair system of military justice. As I said earlier, sometimes in the past that system has not always been seen to be effective or fair. The current military justice system is governed by the Armed Forces Discipline Act 1971. As I said earlier, there have been changes in human rights laws over the years, both domestically and internationally, and the New Zealand Bill of Rights Act made it necessary to review the military justice system. This bill provides for a common system of summary discipline for the armed forces that complies with the New Zealand Bill of Rights Act.

This bill will amend the Acts that I mentioned earlier and, hopefully, following the select committee’s modification, the bill will deliver an enhanced military justice system for New Zealand’s armed forces. New Zealand’s armed forces justice system is currently governed by out-of-date legislation. In fact, the legislation was over a decade old before it was finally enacted. The armed forces justice system needs to be updated to be consistent with international developments in human rights laws, as well as with our own New Zealand Bill of Rights Act. The legislation will better serve our servicemen and servicewomen by applying to them the same rights enjoyed by civilians.

When one reads the report of the select committee and the Bills Digest associated with it, it is interesting that there are some quite detailed recommendations relating to procedural and technical matters that are aimed particularly at protecting the rights of accused persons. These are explained in some detail in the select committee’s commentary on the bill. They bring into a more modern framework the legislation that governs the way courts martial and the like are conducted. As someone who is not a lawyer, I am well aware that some lawyers—and I have acquaintances who are very well versed in this issue, particularly from a military perspective—have been very concerned for some years that the legislation has been not only somewhat out of date but also well out of step with what happens in the civilian world, particularly in relation to the rights of the accused, or the person being court-martialled.

The select committee has recommended that a separate bill be formed from this bill and proceed as the Court Martial Bill. So parts of this bill will be split off and new parts have been added. The select committee has also recommended that the bill provide for an Armed Forces Discipline Committee, which would produce guidelines on sentencing principles and practice, and establish grounds for when there might be departure from those guidelines. The Armed Forces Discipline Committee would be established and chaired by the Chief of Defence Force and would consist of the Vice Chief of Defence Force; the three chiefs of the individual services; the Commander, Joint Forces New Zealand; the Judge Advocate General; the director of military prosecutions; and a representative of the armed forces defence counsel panel appointed by the Judge Advocate General.

The select committee has done a thorough job on this bill, from what I can see. I am not of a legal mind myself, but I have been around this place for some time, and one gets a perspective and a view of when things are not quite as they should be. I think that this bill will go quite some way towards modernising the circumstances and the legislation under which persons who are perhaps up for some disciplinary charge, or who may be even in as serious a situation as being court-martialled, are being dealt with by our military forces.

It does seem to me that this legislation is well overdue and I commend it to the House. I am pleased, Mr Assistant Speaker, that the Foreign Affairs, Defence and Trade Committee appears to be just as thorough and committed as it was in earlier days when you and I were part of it. Thank you, Mr Assistant Speaker.

TIM GROSER (National) : I must say that never having had any personal or professional reason to become involved in these issues, I have found this legislation immensely educational and also quite challenging. Until we started to get deeply into these issues in the Foreign Affairs, Defence and Trade Committee, I had not realised the sophistication of the thinking that has gone into this exercise. Like other speakers, I really want to commend the professionalism and the good patience of the legal services officers of the New Zealand Defence Force. They revealed a very high degree of sophistication in their thinking and a very high sense of responsibility for the procedures they were asking this House to put in place, and were immensely helpful to the committee. In that sense I think they were perhaps a little fortunate that we had at least one member of the committee—namely, my colleague Dr Wayne Mapp—who, unlike me, had quite a deep personal knowledge of this issue. I think he provided some worthy questioning and even perhaps some testing questions at times for the professional staff. Out of this, I think, came a very happy marriage of advisers and politicians, and that is why I think this process has gone both successfully and smoothly.

Every major policy issue has to be looked at by each generation through their own eyes. Things move on. I guess a number of members of this House would be familiar with the old Churchillian aphorism about how discipline was maintained in the British navy historically. It was through a combination of three factors, one of which I have temporarily and, perhaps, conveniently forgotten, but the other two were rum and the lash. That might have been appropriate in centuries past for the British navy, but clearly it would not pass muster in the 21st century with Generation Z. So we have looked at this, starting, as previous speakers have said, with the legislative framework set in place more than 30 years ago, in 1971, and we have then looked at it with fresh eyes in terms of the changes. Those changes are not just in terms of the nature of the New Zealand Bill of Rights Act, which was the main driver, I think, in a procedural sense for much of the debate and the drafting; they also reflect the broader societal changes, such as the enhanced role of women in the armed forces. The committee has looked at this bill through the light of social and legislative changes that have taken place in New Zealand and similar societies since the base legislation of 1971 was put in place, and I think it has done a fair job, frankly.

I suspect that the public understandably is only at the best dimly aware of this major legislative initiative and exercise that has been under way. But I think that many, if not all, members had in their minds the following thought. There are times when things do go wrong in military justice. This can become a matter of acute public concern. If we think back to the deeply controversial executions that took place in the First World War, of people who were alleged to have deserted, and think about some of the debates still going on in societies around the world about some of those deeply controversial military justice decisions, we can see that although the public might not follow this issue on a continuing basis—and understandably so—politicians on every side of the political fence have to bear in mind the long-term consequences of getting it right. This can become a matter of intense public interest if it has not gone right. I think that was very much in our minds. This was a—unique is perhaps too strong a word—once in every generation opportunity to try to get this right, and that was the spirit of the committee’s work.

I also think that a number of us were conscious that the role of the military has become very different and itself much more sophisticated. Indeed, in the discussion paper the National Party put out on external strategies, in the section dealing with defence, it referred to the almost quasi-political role some of our New Zealand defence personnel are carrying out in the Pacific, Afghanistan, and other areas around the world, where they are using not just the traditional soldier’s skills. They are operating in an almost political environment, and their own behaviour and discipline is absolutely essential and a central element in the efficacy of their operations. We have certainly seen—fortunately not in respect of any of our armed services that I am aware of; at least in the recent past—peacekeeping operations involving officers and soldiers of other countries in which some deeply questionable losses of discipline have occurred and where some very serious charges, often of a sexual nature, have been levied against those soldiers. So the whole role of discipline also has an additional character, which is the intense international scrutiny of the behaviour of troops operating in these sometimes grey zones, which are neither combat nor political. I think that is also a broader context in which the issue becomes a very important issue that politicians of every complexion need to bear in mind.

Quite clearly, the role of discipline in the armed services is of an entirely different nature from discipline in any other profession. I do not think we need to dwell on that; it is self-evident. Therefore, the principles underlying the administration of military justice have to be quite specific to the nature of the beast. As far as I understand it, we have, essentially, two types of military justice: the summary discipline system, and the courts martial for much more serious offences.

Like any politician trying to cover a number of bases in which one does not have any personal experience, I followed, on the first issue, the old advice of asking some taxi drivers. Eventually, I found one taxi driver who had been a soldier for a number of years, and I asked him whether he had ever had any experience of military justice. He had, indeed. He and a couple of his mates, when they were young soldiers, had relieved the officers’ mess of a certain amount of alcohol to, as he put it, redistribute it down the line. There were, of course, other ways of describing it that were slightly less favourable to my friend the taxi driver. I asked him whether he went to a court martial. He said: “Good heavens, no. It wasn’t that serious. We were dealt with under summary discipline procedures.” I asked him how it went, and he said they were a bit concerned when the officer who was hearing the charge shouted out to the sergeant major the words “March the guilty bastards in.”, as to whether they were going to get a truly fair hearing. But he said it was a fair cop and he did not have any particular complaints.

Although the “Dad’s army” side of discipline is there, I suppose, we also know that there are much more serious offences carrying severe penalties, and that is where the courts martial comes in. In respect of the summary discipline side of the equation I think there are some very sensible changes. There is the unification of the summary discipline procedures. Whereas in the past there was one for the navy, and other, slightly different, systems for the army and the air force, they have now been combined into a unified base, and I think we have a much more expeditious and coherent system that is consistent with the New Zealand Bill of Rights Act.

In respect of the more serious side of military discipline—the courts martial—I think what we have done with this legislation is end, effectively, that closed loop, as I put it, of the system. The director of military prosecutions will be appointed by the Governor-General, and high standards are expected by the incumbent of that office. He or she must have served, I think, 7 years as a barrister or solicitor to the High Court and must have practical military experience. By insisting that he or she no longer reports to the Chief of Defence Staff, there is a big shift to remove any potential conflict in terms of their career and the chain of command from the director of military prosecutions to the Chief of Defence Staff. Henceforth the director of military prosecutions will be reporting directly to the Solicitor-General, which I think is a very healthy shift, and I hope it will increase the confidence of the men and women of our armed forces that in the event of a serious charge they have a fairer system. I think we all know that fairness is hardwired into the New Zealand DNA. I think the men and women who serve the country with distinction should welcome these changes and feel that they have a system that is up to date, fair, yet efficacious in terms of the special disciplines required.

TE URUROA FLAVELL (Māori Party—Waiariki) : In light of the time and the fact that I thought the next call belonged to the Māori Party—and I apologise to Mr Fairbrother—I seek leave of the House to suspend business until after the dinner break. I would also like to pay tribute to the whānau of Byron Solomon, and under the circumstances I seek leave of the House for that to happen.

The ASSISTANT SPEAKER (H V Ross Robertson): Is there any objection to that course of action being taken? There is none—and it is 6 o’clock.

• Sitting suspended from 6 p.m. to 7.30 p.m.

RUSSELL FAIRBROTHER (Labour) : In speaking in this reading of the Armed Forces Law Reform Bill I will concentrate on three or four aspects of this comprehensive reform of the criminal process in our armed forces. The Minister Phil Goff in his speech this afternoon made very quick reference to what is a significant change in the structure of our court martial process when he noted that the legislation established it as a permanent court of record. Of course, that sets in a whole train of procedures that are now introduced into this bill and become part of the discipline procedures of the armed forces. A court of record, of course, is a court that has a registrar—in this instance—or a clerk responsible for keeping records. It becomes the court of first instance on any appeal and obviates the need on any appeal to rehear the evidence. The court of record establishes an administrative function of a court, and in this bill that is observed by the registrar.

The immediate change that that has—and it is a change no doubt for the better—is contained in the new clause 139, which will be section 139 of the amended legislation, replacing the present section 129. There are two circumstances in which an accused person can object to any person in the court martial about to hear the case against him or her. Under the Armed Forces Discipline Act 1971 as it presently stands, a court martial is specially convened for the particular hearing, whereas under the amending bill we are considering it is established as a permanent court and, thus, a court of record. Under the present law, the accused person can challenge on two grounds. The first is impartiality—the concern that one or more members of the court martial may not be in a position to act impartially, or, and I quote from section 129(1)(b), “Is for any other reason ineligible or disqualified.”

The bill before us now retains the first leg, which is the possibility that a member or the court may not be able to act impartially, but it restricts, perhaps, the second leg, which is for any other reason. The second leg is now defined by what will be the new section 134—the qualifications of the member—that is, that the member of the armed forces has served in the armed forces for a period of 3 years or more and is not disqualified under section 135. If this bill goes through, the new section 135 deals with the grounds for disqualification. They are essentially similar to the grounds in what will be section 139(1)(a)—that is, issues of impartiality—because they relate to whether the military member is the commanding officer of the accused, has been a prosecutor or witness, has investigated the charge, and similar matters such as that.

So the power imposed on the registrar under this bill is quite a responsible power that will have to be exercised by that registrar very, very carefully, because no longer does the court martial itself determine that matter—although no doubt common law would enable that to occur. Under the bill the court martial itself does not determine by a vote of the majority whether a disqualification ground arises. So the registrar assumes a position of considerable importance in ensuring that the subsequent court martial is a fair court martial for the accused person. It will be interesting to see how it develops. It is a move to greater efficiency and it is welcomed, but one would hope that the registrar acts with extreme caution bearing in mind some very, very considerable authority throughout the Commonwealth, particularly in Britain, on questions of conflicts of interest. Conflicts of interest must remain as an inherent concern in my argument under the new section 139, as it will be if this matter goes through.

The other matter about this bill is that clauses 13 and 14, which we find on page 27, go against trends in some Commonwealth countries in relation to the double jeopardy rule, and also against the trend that is, in fact, in business presently before the House with the Criminal Procedure Bill. Clause 13 deals with the circumstances of autrefois acquit and autrefois convict, which are the grounds for a double jeopardy defence. A double jeopardy defence, of course, is a technical defence raised by an accused person at the outset of any charges. It is a longstanding common law tradition and basic principle that has been changed somewhat in the last 10 years in some countries—principally England and two states of Australia. If the argument of double jeopardy is advanced and accepted by the court, that brings matters to an end.

Under clause 13 of this bill, the double jeopardy rule is, in fact, reinforced and given a wide ambit. Clause 13(3) brings in a new subsection (4) to section (21) of the principal Act and relates to a previous acquittal or conviction or any offence taken into consideration by that court martial or tribunal in sentencing him or her for another offence. It goes on to define with some degree of exactitude the width of offences that might have been taken into consideration. This is really a codification of the double jeopardy rule that, until this moment, has been a common law concept and not often codified. In fact, it is very rarely codified—although it is dealt with explicitly in the constitution of Canada and in the US constitution, for example.

This codification of the double jeopardy rule is perhaps, at first glance, at odds with the Criminal Procedure Bill presently before Parliament. That then takes me to the third area I want to deal with—the quite different concept of discipline in the armed forces as opposed to discipline in civilian life, because the armed forces deal with a wider range of circumstances than civilian life. Effectively, under armed forces discipline, we are giving to an accused person’s superior officer the right to exercise summary judgment in a very expedient way. This is demonstrated no more clearly than in new section 117ZD that gives a cut-off point between when the accused person may have legal representation or not. If the accused person elects to go for a court martial, that person has the right to legal representation, but if he or she elects to have the matter dealt with summarily, then he or she loses the right to legal representation. That is a departure from the New Zealand Bill of Rights Act. I am not saying it is a breach, because it has passed that test, but the person has 24 hours in which to—

Christopher Finlayson: Since when has Labour been interested in the Bill of Rights?

RUSSELL FAIRBROTHER: At least they can spell it. The accused person has 24 hours in which to reconsider his or her decision to be tried summarily and, particularly, to lose the right to legal counsel.

This is legislation that brings the New Zealand Bill of Rights Act into the armed forces law in a direct way, but, of course, it limits the right under sections 24 and 25 in that respect. Again, it would emphasise the summary nature of that decision and it would reflect the importance of having fairness of trial. The due process provisions that give rise to fairness are dealt with in the new bill and enable the accused person to agree to a lot of shortened processes, such as evidence by statement, and various other concessions that accused person may make. A court of review would have to have regard to that due process aspect. But, of course, in the summary jurisdiction the penalty range is much restricted and, in the main, relates to a stoppage of grog, curtailment of leave, or a demotion of rank. So the New Zealand Bill of Rights Act is brought in expressly but is then limited by the decision of an accused person to have the matter tried summarily. I note that the Foreign Affairs, Defence and Trade Committee dealt with this aspect and brought in the 24-hour cooling-down period, and one would hope that that is enough and that the accused person is free from any influence.

Finally, I will deal with the fact that this bill brings in new section 117ZK, to be found at page 73 of the bill. This new section brings in the Evidence Act that was passed this year, then limits it, in some respects. But this bill adopts into the discipline laws the Evidence Act, which, quite clearly, was intended to be a codified provision.

This is a welcome change to the armed forces. There are some bold moves in this bill, particularly in establishing the Court Martial as a court of record and limiting the New Zealand Bill of Rights Act. I look forward to the Committee stage of the bill.

TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā koe, Mr Assistant Speaker. Tēnā tātou katoa. Hei whaiwhai haere i te ia o te kōrero i tēnei pō, ko tāku noa ake, ko te tautoko i ngā poroporoaki ki tērā o ngā tama i ngau nei, i rongo nei i te āhuatanga o aitua i te wiki kua hipa ake. Ko ia tēnei e whai nei i te āhuatanga o te Whakahuihui Vercoe, o Hirini Jackson i ngā marama kua hipa. Ehara i te mea, he haerenga mokemoke tēnei.

E te uri o te whānau o Solomon, koutou ko te whānau Karkeek, te taonga o te mate Byron, moe mai. moe mai, moe mai rā.

Me pēnei rawa te kōrero, waiho ko te hunga mate ki te hunga mate. Anei tātau te hunga ora e wānanga nei i ngā kōrero, i ngā take o te wā. Huri noa i te Whare i tēnei pō, tēnā koutou, tēnā koutou, kia ora tātou.

• [An interpretation in English was given to the House.]

[By way of following up the trend of the talk this evening, my part is merely to support the tributes of farewell to that son who died last week. Indeed, he follows Whakahuihui Vercoe and Hirini Jackson, who passed away in the months gone by. This is therefore not a lonely journey for him.

To you, Byron, treasure of death, and relative of the Solomon family, and you of the Karkeek family, slumber there, lie there, rest there.

Leave the dead to the dead, is the saying. Here we are, the living, debating the issues and matters of the day, so greetings to you, greetings to you, and greetings to us throughout the House tonight.]

Kia ora tātou. Kei te tangi tonu te ngākau.

[Greetings to us. The grief inside continues.]

As we mourn with the Carkeek and the Solomon whānau in the loss of their beloved son, the able seaman Byron James Solomon, it is to be noted how the values that came forth this last week—the values of bravery, of courage, and of heroic strength—are the same values that we commonly expect our armed forces to display every day, every week. I have no intention of talking about the detail of this sad case, other than to highlight the relevance of the Armed Forces Law Reform Bill in reforming the military justice system in such a way as to ensure consistency, fairness, efficiency, discipline, and justice. He tika tonu tērā mō Byron, me pērā ka tika. Byron James Solomon deserves nothing less.

Under the current system, as I understand it, legal representation would be excluded from courts of inquiry in all cases in the armed forces. Some of the submitters to the Foreign Affairs, Defence and Trade Committee whom I heard about expressed the concern that this exclusion is inconsistent with the right to natural justice, and that the accused should be entitled to legal representation at the summary trial. Mr Fairbrother talked a little bit about that. The Foreign Affairs, Defence and Trade Committee, I read, concluded that in a situation in which a service member is facing a jail sentence, if the disciplinary officer at least advises the accused of the right to legal representation in electing summary trial, then that would satisfy the requirements for fairness and the need to maintain discipline. The crucial point is that the opportunity to benefit from legal representation is at least offered.

The Māori Party does, however, share the concerns of the submitters in cases in which a sentence of being locked up is not going to be imposed. It would appear that this bill suggests that the right to legal representation is not relevant in these circumstances. Yet where a sentence is likely to lead to people being locked up, those involved are offered, and can have, representation. So the question is how we can be assured that discipline, fairness, and accountability are maintained. Will we be seeing those subjected to disciplinary procedures having the nature of justice ranked, and therefore having access to legal representation denied? The Māori Party knows full well about the nature of justice being denied—the damned Foreshore and Seabed Act showed us all about that. But another question we would ask is: if it is deemed that the accused does not require legal representation because the charge may be of little consequence, why lay the charge in the first place?

This is a very important bill. It is an opportunity to ensure that the armed forces—and, consequently, the regular force, Territorial Force servicemen and servicewoman, and civilian staff across the navy, the army, and the air force—are entitled to better human rights protections when encountering the military justice system. The bill is also important in taking explicit account of international human rights laws. This is a welcome change from the Government, which has shown a little bit of disregard in terms of indigenous human rights, as is apparent in its rejection of the Declaration on the Rights of Indigenous Peoples less than a month ago.

But, to put that aside, I say that a particularly positive proposal is the recommendation that the bill be amended to provide that all judges of the Court Martial of New Zealand are appointed in the same manner as the Chief Judge. It is a proposal that endorses the constitutional value of the separation of powers between the judiciary and the executive. It is also positive to see that the proposed terms of appointment and tenure of military judges are to be consistent with practice in Commonwealth jurisdictions—specifically, the United Kingdom, Australia, and Canada. The separation of powers doctrine is an important means of maintaining accountability, fairness, and liberty, which in effect ensures that each branch of Government, by being kept separate, places a check on the other. This principle of independence has also shaped the decision by the select committee to make the supervisory powers of the Solicitor-General over the director of military prosecutions less rigid.

In much the same way we welcome the inclusion of clause 151 to reintroduce provisions to enable an accredited news media reporter to have access to courts martial. We were interested in the advice of the Media Freedom Committee of the Commonwealth Press Union, which inevitably drew attention to the issue of public interest associated with military transgressions. The comment that “the best sunlight is disinfectant” caught my eye. If we are at all committed to removing any bacteria, corruption, or disease of injustices that may occur in courts martial, then I suspect that media exposure is one sure way of achieving this. Our armed forces must be open towards upholding the highest codes of personal integrity and accountability, and the freedom of disclosure of information through the media is a key means of promoting this.

Mind you, I am always worried about the looseness of interpretation, with phrases such as that information should be prevented that “might otherwise be harmful to New Zealand”, as we see in the report from the select committee. One might say that the reporting of a particular rugby game last weekend might otherwise be harmful to New Zealand, or, indeed, the exposure to the fact that New Zealand is one of four countries that opposed the good judgment of 143 other countries across the world to support indigenous human rights in the recent actions of this Government in rejecting the Declaration on the Rights of Indigenous Peoples.

In considering the notion of harm, we are supportive of the intention for a 24-hour grace period to be established in relation to the accused electing trial by court martial. The space for the accused to consider the full implications of his or her decisions—a cooling-off period, if you like—and a new offence created to punish any officer who attempts to improperly influence the service member during this time are both useful additions to the legislation. That time to reflect and to contemplate the full ramifications of the decision to go to trial by court martial, we believe, will only benefit the process in preventing hastily made and easily regretted decisions.

The pursuit of justice is also facilitated through amendments to clause 38, which put in place procedures by which the accused can be advised of the right to appeal. The appeals system is a particularly important innovation to ensure consistency across all strategic environments. Currently, the New Zealand Defence Force is characterised by two different summary disposal systems. There has been an absence of an appeals system, which is inconsistent with the New Zealand Bill of Rights Act. This bill rightly corrects this error.

I believe that three particular events of recent occurrence are appropriate to refer to in the context of this bill. The first is the heroic rescue undertaken by the Royal New Zealand Air Force’s Orion crew, who on the weekend saved the lives of six fishermen by rescuing them from their boat that was drifting north of Tonga. The Royal New Zealand Air Force is responsible for search and rescue operations within New Zealand’s maritime search and rescue area, which encompasses some 6 million square miles, including much of the South Pacific. As such, the saving of lives is, if you like, part of its core business.

The second event was the diversity award won by the New Zealand Defence Force in the Equal Employment Opportunities Trust’s annual Work and Life Awards in Auckland last month. That policy was explained by the human resource manager, Laura Gillan, as aiming to tackle “the pervasiveness of masculinity in the military culture and the pressures put on women to conform to the masculine set of values and standards”.

The third event, of course, is the exceptional act of bravery that saw Corporal Willy Apiata honoured in New Zealand with the Victoria Cross for his actions while serving in Afghanistan in 2004. This Ngāpuhi hero risked a direct line of fire to save the life of a comrade, then carried his mate across 70 metres of broken, rocky, fire-swept ground while facing the glare of enemy battle fire before returning to counter-attack. Those are three events that represent the capacity to upskill and to change with the times, the courage and capability to demonstrate remarkable leadership and the highest personal integrity, and the selfless service of those who truly know the value of human life.

We in the Māori Party hope that in supporting this Armed Forces Law Reform Bill, the principles guiding the reform of New Zealand’s military justice system are aligned with the gallantry and inspiration that its own servicemen and servicewomen live by. We are heartened in this by the view of the New Zealand Law Society that the bill represents a principled attempt to find the right point of balance between the requirement of discipline in the armed forces and the requirement of the New Zealand Bill of Rights Act. Kia ora tātou.

RON MARK (NZ First) : I rise on behalf of New Zealand First to add some comments in support of the report back to the House on the Armed Forces Law Reform Bill. Interestingly, I note right from the outset that the Minister of Defence, Phil Goff, was quite open in consulting cross-party on this bill. In fact, I recall being in meetings with the honourable Dr Wayne Mapp at the beginning of the process, and it is good to note that on an issue such as this there has been cross-party co-operation right from the outset. I have noted that the need for the bill was clearly highlighted, and there was definitely a need to upgrade, to modernise and to bring into the 21st century the armed forces’ justice systems. There was a definite need to recognise the human rights declaration, and we were briefed quite well on the need to incorporate within the law the principles contained in what the military referred to as the seven samurai.

The first, the maintenance of discipline, is absolutely essential in such an organisation as the New Zealand Defence Force. I must say that about the maintenance of discipline, under what can be very trying and very difficult circumstances—circumstances that average New Zealanders really would not have a clue about, and would never understand until they themselves chose to don uniforms, pick up firearms, and put themselves in the same situation and under the same risk.

The second is consistency in all strategic environments, and that is specifically with reference to and recognition of the fact that the defence forces are deployed all over the world, in the air, at sea, and on land. They can be in foreign countries, and in differing types of peacekeeping and peacemaking operations, where the rules of engagement differ, where the political scenarios can often be very, very delicate, and where the rights of the soldier, the sailor, and the airman so engaged can very often be described as being razor-blade-ish. One decision—interpreted by the media as being an inappropriate decision regardless of the circumstances—can have huge political consequences that can reverberate internationally and drag the country into political debate far, far beyond the imaginations of the average rifleman in one battalion.

The third is portability, which again emphasises the need for military law to be able to be transported, to be enacted, and to be implemented anywhere around the world under the most difficult and trying of circumstances.

Expedition is the fourth, and it is exceedingly important that matters of discipline within the military be dealt with expeditiously. If there is one lament that New Zealand First continues to have in this House, it is that we do not see the same devotion or same commitment towards the expeditious implementation of disciplinary measures within the police force. By contrast, the police seem to have had a habit—in fact, they seem to have made an art form—of dragging their officers through the grill, year after year, without any regard to the consequences for their families and children. All too often, at the end of those rather lengthy processes where officers have been stood down on full pay for years and have not known fully where they stood, they are found to be innocent or it is found that charges will not be laid. People have an expectation that the officers will put that behind them, forgive everybody’s tardiness or lack of expeditiousness, and simply get on with the job as though nothing had happened.

Thankfully, the military cannot and does not act in such a way, but I do recall—and I would like to put it into Hansard—an incident up in Helwan Camp. I am reflecting back to about 1983, a time after I had come back from a tour of duty in the Middle East as part of the inaugural deployment into the Sinai Peninsula. I was second-in-command of a unit, and I watched three New Zealand soldiers get rammed through hearings at 1.30 in the morning in a tent in the field, without being given the opportunity to seek legal counsel or to get legal advice as to what the consequences of a guilty plea would be. That was despite the fact that the police had initially been called in to investigate the allegations against the three soldiers, and that the police had told the commanding officer—in fact the task force commander—that they would not refer charges because there was no case to answer. The military, of course, has differing standards—and rightly so—as to what is proper or improper conduct, and therefore reserves the right to charge a person even though the police may believe there is no charge to answer. As the second in command of a unit, what I found reprehensible—and what I put myself in the firing line on—was the fact that those soldiers were put through the disciplinary process in a manner that could only be described as showing undue and unfair haste, which seriously jeopardised and compromised the ability to prove their innocence, or to at least mitigate their case.

I am not going to tell the House what the charges involved were; all I am going to say is that my primary concern then, as a captain in the New Zealand Army, was that justice was fair, consistent, and properly carried out. I still to this day look back on that incident with some discomfort. I tell members that in defence of those soldiers I led the charge for a redress of wrongs. I put their case and attempted to get their case reheard. Unfortunately, I was posted on a course for 3 months and some people rushed the redress through while I was away and got the same result. It still leaves a very sour and bitter taste in my mouth that we could act in such a way.

The charges these soldiers were facing were serious and involved a young lady and a young soldier whom was married at the time. I want to put on the record that in that particular incident one officer—whom I will not name, out of fairness to him—took it upon himself to put the young soldier into a car, which was driven all the way back to Linton camp, and had him front up under escort to his wife and tell her what he had done. His wife got very upset, punched the window, and slashed her arm. They called an ambulance, put the soldier back in the car, drove him back to Waiōuru, and locked him up. That was an appalling incident; one that I have never forgotten. I shall never forget the name of the officer who ordered that to be done. It has always left me feeling that there are some things about the military justice system and the way in which it is implemented that, clearly, no matter how perfect the system will always rely on the judgment and integrity of the officers charged with its implementation and the responsibility of that. New Zealand First could probably go into history and look at a number of cases in which military justice is seen to be pretty ruthless. Thankfully, the military is not what it was in years gone by. We have a distinctly different class of leadership today to what we had in some other eras. We are very comfortable with that.

New Zealand First notes and wants to put on the record that the Foreign Affairs, Defence and Trade Committee has made numerous recommendations for adjustments to the bill that the Minister of Defence has said he supports. I have read this report. I have looked for a minority report from the National Party. I simply say to the House that, unlike with the Criminal Justice Reform Bill, I hope that if an issue should arise out of here that the select committee and the National Party did not see fit to write about we will not see another outrageous claim by someone in National—such as with Simon Power on the Bail Act—that they were always against that element, when quite clearly there is no mention of that in this report. Other parties that do not sit on these select committees rely on the integrity of the select committee members to report back fully and completely. New Zealand First is taking this report as a true and accurate feeling of what National sees as necessary. We will look with interest at any further amendments that might be brought to the floor through necessity by National, in particular, in the Committee stage. But at this point, as the bill sits, we will support it through the House and look forward to its passage and final assent.

Hon GEORGINA TE HEUHEU (National) :Ka mihi ki a Byron Solomon kua hinga atu nei. Haere e te tama a Tūmatauenga. Haere, haere, haere atu rā. Ngā mihi aroha ki tō whānau tūturu me tō whānau hēramana. Moe mai rā.

• [An interpretation in English was given to the House.]

[My respects to Byron Solomon who has passed away. Farewell the son of Tūmatauenga, god of war. Farewell, farewell, depart. Fond love to your very own family, and your Navy family as well. Rest there.]

I also wish to salute all current New Zealand Defence Force personnel. It is good to have an opportunity to do so. They put themselves forward in the defence of our country. In the current times, that can mean putting themselves at extreme risk. It certainly has meant that in the past, but it is also the case now. I salute each and every one of those personnel currently serving. This week also being the week in which we commemorate Passchendaele, I also take the time to remember all of those from generations past right to the present who have served this nation well, and particularly those who have lost their lives in the service of our country.

The Armed Forces Law Reform Bill, as has been noted earlier, makes amendments to three pieces of legislation. It is the result of a very extensive review of the New Zealand military justice system that was initiated by the New Zealand Defence Force, for which it also ought to be commended, and conducted by the New Zealand Defence Force in a very professional, comprehensive, and consultative manner. This was recognised by the select committee, on which colleagues of mine—and, particularly, Dr Wayne Mapp—participated in the discussions and questions and in clarifying issues. The select committee recognised the purpose of the bill and has worked diligently to assist the modernisation of New Zealand’s military justice system. It is not before time.

The purpose of the bill is to update the military justice system to bring it into line with international developments and also with changing societal and political developments both here and internationally. The New Zealand Bill of Rights Act has been a primary driver, we are told, in the proposed amendments. Overall, this bill is a welcome, timely modernisation, and National supports it. The big thing is the comfort and confidence that the serving armed forces can take from the changes that have been proposed here. They are entitled to know that just because they are in a workplace that depends for its efficacy on strict discipline, they are no less entitled to the rights and freedoms that all New Zealand citizens enjoy. Therefore, they can have every confidence that those rights and freedoms are theirs—no more and no less than for any of us—and that they can expect these rights and freedoms from a modern, democratic nation. As I said, overall the bill is a welcome addition to our legislative programme and it is good to see that all parties are on board with it.

As a result of the bill the actual military offences do not change, but what does change is the way that those offences are dealt with—the processes and procedures that the military now becomes subject to and part of. In respect of the summary discipline system, there has been an overall comprehensive review of those procedures. One can say that there have been some very sensible changes. For instance, prior to these changes, the army, navy, and air force were dealt with separately. They now all come under the one comprehensive system. There is a cohesiveness and efficiency to it that makes sense. The bill also takes note of the fact that over the last few years there has been an integration of our forces in any event. From that point of view, it is also very sensible.

For the much more serious offences we have the courts martial system. In that regard we have a new office—the director of military prosecutions—appointed as a way of adding extra security and confidence into the system. In fact, the changes that are made in relation to those processes are more attuned to the notion that men and women serving in the armed forces are indeed New Zealand citizens, and that, should they have the misfortune to be looking to this system, they are entitled to be dealt with in no less a proper manner than if they were facing similar circumstances outside of the military.

Overall, as I have already said and as other speakers have referred to, there is a unity of the processes; they are much more coherent, much more efficient, and more closely aligned to what happens in the justice system per se in New Zealand. By and large, we have a very good justice system nationally. It obviously needs a bit of a boot up when National comes into power, as there are gaps there at the moment. But, as I say, it is very important that those of our citizens who willingly put themselves in harm’s way can be confident about the justice system under which they fall.

The only other comment I would make is on the issue about media freedom. I think, as a colleague said earlier, it is a tenet of our justice system in New Zealand—a tenet of a democratic justice system—that not only must justice be done but it must be seen to be done. That tenet is certainly what drives the justice system overall, and it certainly must be the case here as well. The select committee apparently was concerned that the bill as introduced removed the current provision in the Armed Forces Discipline Act that allows media access to courts martial under section 131 (4). The committee rightly recommended that that right be included in the bill. It is a further protection, particularly for those who come before the courts martial. Those people are able to have confidence that they are being given the greatest rights and freedoms that we all enjoy.

In closing, I say again that it is good work we do in this House when we see the results of some very hard and professional work by all concerned, when the changes we will finally pass into law are such that they give ourselves, as citizens, confidence about the way in which we deal with offences against the law, and when the armed forces themselves are also included in those changes. Thank you, Mr Assistant Speaker.

• Bill read a second time.