Third Readings

Hon GEORGINA TE HEUHEU (National) Link to this

I am pleased to speak on the third readings of the Armed Forces Discipline Amendment Bill (No 2), the Court Martial Appeals Amendment Bill, the Defence Amendment Bill (No 3), and the Court Martial Bill. As the titles indicate, specific matters are dealt with in each bill. I want to focus primarily on the overall principle underpinning the reforms in these bills, and that is that the military justice system in place in New Zealand must ensure that the rights enjoyed by all New Zealand citizens in the overall justice system are available to our Defence Force personnel.

It goes without saying that as New Zealand citizens themselves, our military personnel have a right to expect that their access to justice and the maintenance of their rights within the military justice system are no less than if they were living their lives as civilians. Indeed, given that discipline lies at the core of a modern, professional, highly disciplined, fully functioning, and efficient military capability, those same serving men and women might expect more. In the exercise that has led to these reforms they can, I think, be confident that to the fullest extent possible they have been afforded no less than their fellow New Zealanders. In this regard we as parliamentarians have been presented with a once-in-a-generation opportunity to update our military justice system and, in the process, to provide the New Zealand Defence Force with a modern system that befits New Zealand’s democratic tradition and reflects the values we hold dear—values such as liberty, respect for the rule of law, respect for human rights, fairness, and so on.

The 21st century was probably always going to be an appropriate time to update the law, so in that sense, I guess—although we are 8 years into this century—we might say it is timely to have these reforms, but it has taken the Government nearly a decade to bring these reforms to the point where they are about to be passed into law. It is timely not only because every country likes to think there is a certain time at which it will modernise its institutions but also in so far as regarding some of the changes that have occurred both in our domestic situation and in international terms.

With these reforms we have been given an opportunity to ensure that the military justice system is properly aligned to the structure and modern conditions of our armed forces. Over recent years we have seen the joint orientation of our military—or three into one, so to speak—with the army, the navy, and the air force being brought together in a joint operation. Not only are they working together, training together, and operating together in a joint capacity at home, but also in their deployments overseas they are working in a way that better aligns the overall objectives of a modern military force.

The other reason that these reforms are timely is that they ensure that our military justice system is consistent with international developments and international human rights standards, which we are always diligent about incorporating into our domestic law. We have done that in recent years. Through modern technology, the actions and behaviours of nations in the conduct of their military operations, particularly outside of their own territories, are now wide open to international scrutiny. In that environment it is absolutely imperative that New Zealand, a country that has a very fine reputation for upholding human rights and freedoms, is seen to be in line with international norms not only in the way that it conducts itself in its military operations but also in the way it upholds and supports the rights of its serving personnel. The reforms before us come with those values and notions primarily in mind.

Our reputation is high in this area. We always have to be diligent about making sure that our reputation for protecting human rights and, no less important, the rights of our serving armed personnel is maintained. As I have mentioned, discipline lies at the core of a professional, modern, and efficient defence capability. Integral to that is a comprehensive military justice system that keeps pace with the current military environment. Of course, this has changed markedly from the environment of, say, a decade to 15 years ago, particularly following 9/11. The images that have come out of Iraq and Guantánamo Bay, in particular, clearly show what can happen when discipline as we know it and as we value it has broken down and when human rights standards are violated. We will not want to be any part of that kind of violation, and we never will be, but, as I say, it does take a determined effort on the part of our officials and also of ourselves as parliamentarians to make sure that those sorts of images remain far away from where we are in the international scene. Over the past few years our Defence Force has been going through a process of modernisation to meet new and complex challenges, and it is absolutely appropriate that we ensure that our military justice system undergoes the same treatment.

I will briefly look at the bills in their single form. The Armed Forces Discipline Amendment Bill (No 2) standardises across the three services the delivery of justice at the summary level. It will ensure that service members appearing before their superiors on disciplinary matters will be better advised of their rights and will have someone to speak on their behalf.

The Court Martial Bill will, for the first time, establish a Court Martial of New Zealand as a permanent court of record. It provides for the constitution, powers, and procedures of the court, and, in particular, that the judges of the Court Martial will preside over hearings and may more efficiently deal with preliminary issues before the military members of the court have been assembled. It also introduces new features that reflect the nature of modern armed forces, and the manner in which discipline should now be effected within them.

The Court Martial Appeals Amendment Bill will introduce important new provisions relating to the constitution and powers of the Court Martial Appeal Court. The Defence Amendment Bill (No 3) clarifies the relationship between the new appeal process at summary and court martial level, together with the very important right that members of the armed forces have to seek redress of a complaint about any other matter from their commanders under the Defence Act.

Our serving men and women of the armed forces make the ultimate sacrifice on our behalf; when they are called they go willingly. Those decisions to deploy them to areas of armed conflict are made right here in this Parliament. The very least that we as parliamentarians can do is to make sure that the military justice system, which serves those serving armed personnel, is up to date, is modern, and ensures that their rights are no less than those of all other New Zealanders.

Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this

Tēnā koe, Mr Deputy Speaker. This bill is being read in a context that reflects the fickle state of popular favour. If this bill had been read a month ago, as the nation commemorated the 90th anniversary of the Battle of Passchendaele, the context of military action would have been described using words like courage, sacrifice, comradeship, discipline, and honour. A more dramatic contrast to that would be hard to find than the descriptions of military training that erupted from the depths of the Urewera Valley on what is now known as Black Monday—15October 2007. Suddenly military training became likened to guerrilla warfare, with wild descriptions of balaclavas, camouflage clothing, napalm gel, and paramilitary activity decorating the debate.

Just an hour’s drive from Rūātoki one will arrive at Tūkāki Marae in Te Kaha, where Corporal Willy Apiata VC was recently celebrated in a grand event supported by the New Zealand Defence Force and Te Puni Kōkiri. Tūkāki Marae also has strong links to Second Lieutenant Te Moananui-a-Kiwa Ngārimu who was awarded the Victoria Cross posthumously for actions while serving with the 28th Māori Battalion in Tunisia. Fighting for the honour of the country or guerrilla wars—what is it to be?

I raise those contrasts in perceptions because they seem to be central to the context in which military reform is to take place. The suite of bills that we are considering today in this third reading debate has been constructed in such a way as to promote core values of discipline, consistency, fairness, efficiency, and simplicity across the military system. I am particularly interested in the notion of consistency. How is it that “camo” clothing—the parachute pants with multiple pockets and zippers, in colours that blend into the lay of the land—is considered to be acceptable across the pages of the 2007 fashion catalogues but is unacceptable when the people of the Tūhoe nation take it upon themselves to wear it?

Indeed, ironically, camouflage clothing has, in previous eras, been associated with the direct opposite of war—that is, peace. During the Viet Nam War, for example, protestors wore camouflage jackets with peace signs and anti-war slogans written on the backs. Activists made powerful fashion statements in taking on the clothes of soldiers from the very war they were speaking out against. Will the duck and game hunters and gatherers from deepest Canterbury be taken in for questioning if they dare to go shooting in clothes that carry the shading of the jungle?

I mean no offence in raising these questions. They are questions that New Zealanders have emailed to me, written to me, or have rung me about over the last month. They have asked me why it is legitimate to enrol on the 6-week military training course and earn the title of Limited Service Volunteer in a programme run at Burnham Military Camp and sponsored by Work and Income, yet a wānanga run by Tūhoe is likened to a preparatory school for al-Qaeda.

This suite of bills amends the armed forces discipline legislation and reforms the military justice system in line with human rights law. And this, of course, is the greatest inconsistency of all: a Government that has denied indigenous rights and that is happy to disregard the human rights of citizens and children in our small rural communities makes, on the other hand, a great public pretence of being the biggest human rights defender of the South Pacific.

We in the Māori Party, of course, are wholly supportive of the move signalled in this legislation to be compliant with national and international human rights law. We do believe that the proposals in this legislation better protect the human rights of people who face military justice. But one good piece of legislation does not make us a role model for human rights compliance. The proposals in the armed forces law reform legislation, although positive, can in no way justify New Zealand having the audacity to announce its candidacy for the United Nations Human Rights Council for the period 2009-12.

It is also of interest to us in the Māori Party that despite the fact that Māori are strongly represented in the army and navy, no briefing or advice on this legislation had been received from Te Puni Kōkiri. Once again, the question must be asked as to why we have a department ostensibly set up to advise the Government about the impacts for Māori, yet we do not ask it for informed comment on legislation such as this. In particular, we would be interested in seeing what advice Te Puni Kōkiri could bring to bear on these four bills in relation to the application of the Declaration on the Rights of Indigenous Peoples. In that declaration, article 30 states: “Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a significant threat to relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.” So when we think of the purpose of these bills being to reform the military justice system in line with developments in human rights law, we would of course presume that to be in line also with the human rights of indigenous peoples.

Another key movement in these bills has been to respond to the anomaly of the existing practice that legal representation is excluded from the courts of inquiry in all cases. That has long been thought to be inconsistent with the right to natural justice, so we welcome the assertion of rights that will make these bills compatible with the New Zealand Bill of Rights Act 1990. In particular, we welcome the initiative this legislation makes with regard to sections 24(c) and 25(a) of the New Zealand Bill of Rights Act. The House will recall that section 24(c) states that everyone charged with an offence has “the right to consult and instruct a lawyer”, and section 25(a) states that everyone has “The right to a fair and public hearing by an independent and impartial court.” The Māori Party supports, therefore, the amendments included in the bills, which now better protect the human rights of those who take up the challenge of working for the military.

Finally, we are pleased to support the momentum ensuring that there will be consistency across all strategic environments in respect of the summary disposal systems. The existing law lacks any appeal system for summary disposals, so the changes included in these four bills to ensure joint operational orientation across the army, navy, and air force are very positive. We believe that the key features of the four different bills included in this package will greatly enhance the efficiency of the military justice system in its first significant reform since the original Armed Forces Discipline Act came into force some 24 years ago. We support also the possibility of better justice for all, and if these bills are the starting point in the military sector, then the Māori Party is happy to lend its support to them at their final readings. Thank you.

JILL PETTIS (Labour) Link to this

I am pleased to speak in the third readings of the bills coming out of the Armed Forces Law Reform Bill. 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. As we know, 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, most ably 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 legislation will also make a number of consequential amendments. The amendments are the result of a review of the New Zealand military justice system conducted by the New Zealand Defence Force. The review was aimed at revising the system to take account of changes in domestic and international human rights law, including the New Zealand Bill of Rights Act 1990. The legislation makes major and quite considerably far-reaching changes to New Zealand’s military justice system. These alterations were the subject of extensive internal consultation by the New Zealand Defence Force during the whole of the review period.

Over 4 long and intensive years detailed input was sought from all members and at all levels of the armed forces, including the Judge Advocate General. I had the pleasure of participating in some of the process of this legislation through the Foreign Affairs, Defence and Trade Committee, and I know that the committee wanted to commend wholeheartedly the legal staff of the New Zealand Defence Force for their competence and professionalism in the initiation and conduct of the review and the modernisation of the law. The whole review process was excellent and highly professional, and we were proud to listen to the advice we were given by the legal arm of the New Zealand Defence Force personnel as they presented to the select committee.

Military discipline has changed considerably, and today, as a consequence of this armed forces reform legislation, it more closely reflects the social mores of present society. The legislation is a reflection of the many changes we have seen in society not only in our relatively short lifetimes but also in the history of the military in New Zealand. The discipline meted out today is far different from what it was even 30 years ago, and if we look back through the annals of history we see that what was acceptable in our parents’ day and grandparents’ day is no longer relevant today.

The Labour-led Government believes that the same rights enjoyed by civilians in the criminal justice system should be applied to our armed forces personnel under the military justice system. The purpose of this legislation is to establish an effective and fair system of military justice, and I believe that it does that, partly because of the highly professional work that was done during the 4 years of the review. The current military justice system is governed by the Armed Forces Discipline Act 1971. However, domestic and international developments in human rights laws, as well as the enactment of the New Zealand Bill of Rights Act, made it necessary to review the military justice system, as I referred to before.

I take this opportunity to compliment the New Zealand Defence Force personnel, who make us very proud when they serve internationally and domestically, and I commend the legal staff of the New Zealand Defence Force for the work they have done to modernise the armed forces legislation. Thank you.