Armed Forces Law Reform Bill

I ahau e tu nei, ka huri oku whakaaro ki Te Taua Moana o Aotearoa me ta ratou mokopuna, tamaiti.

E te uri o te whanau Solomon koutou ko te whanau Carkeek, te taonga o te mate Byron, moe mai, moe mai, moe mai ra.

Waiho ko te hunga mate ki te hunga mate anei tatou te hunga ora e wananga nei e korero nei i nga take o te wa, huri noa i te whare tena koutou, tena koutou, tena koutou.

Kei te tangitangi te ngakau.

And as we mourn with the Carkeek and Solomon whanau, in the loss of their beloved son, Able Seaman Byron James Solomon, it is to be noted how the values that came to the fore last week – the values of bravery, of courage, 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 debating the detail of this sad case, other than to highlight the relevance of this Bill, to reform the military justice system, in such a way as to ensure consistency, fairness, efficiency, discipline, justice.

Byron James Solomon deserves no less.

Under the current system, legal representation would be excluded from Courts of Inquiry in all cases.

Some of the submitters to the Select committee expressed the concern that an exclusion is inconsistent with the right to natural justice – and that the accused should be entitled to legal representation at the summary trial.

The Foreign Affairs, Defence and Trade Committee concluded that in a situation in which a Service Member is facing a sentence of penal consequence, 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.

Mr Speaker, we do, 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 when a sentence is likely to lead to being locked up, those involved are entitled to, and are likely to be offered legal representation.

But the question is then, can we be assured that discipline, fairness, accountability is 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 Maori Party knows full well the nature of justice denied. That’s the damned Foreshore and Seabed Act – that showed us all that.

The 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 Bill is a very important Bill.

It is an opportunity to ensure that the armed forces, and consequently the regular force, territorial force service men and women, and civilian staff across the Navy, Army and 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 law.

So this is a welcome change from a Government which has shown a little bit of disregard of indigenous human rights, as is apparent in their shallow rejection of the Declaration on the Rights of Indigenous Peoples just less than a month ago.

With that aside, a particularly positive proposal is the recommendation that the Bill be amended to provide that all Judges of the Court Martial are appointed in the same manner as the Chief Judge.

It is a proposal which endorses the constitutional value of the separation of powers between the judiciary and the executive.

It is also positive to see 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 – ensuring that by being kept separate, each branch of government in effect 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 prescriptive.

In much the same way, we welcome inclusion of the new clause 151, to re-introduce provisions to enable an accredited news media reporter access to Courts Martial.

We were interested in the advice of the media freedom committee of the Commonwealth Press Union who, inevitably, drew attention to the issue of public interest associated with military transgressions.

The comment, that “the best sunlight is disinfectant” caught my attention – and if we are at all committed to removing any bacterial corruption or disease of injustices which may occur in courts martial, then 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 preventing information which “might otherwise be harmful to New Zealand” – as we see in the report from the select committee.

One might say reporting of a particular rugby game this last weekend “might otherwise be harmful to New Zealand” or indeed, the exposure to the fact that New Zealand was 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 to reject the Declaration on the Rights of indigenous people.

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 to consider the full implications of their decision – a cooling off period – and the 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 a decision 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 system. There has been an absence of an appeals system – which is inconsistent with the New Zealand Bill of Rights. This Bill corrects this error.

Mr Speaker, there are three particular events of recent occurrence which I believe are appropriate to refer to in the context of this Bill.

The first is the heroic rescue undertaken by Royal New Zealand Air Force Orion crew who saved the lives of six fishermen on the weekend from their boat which was drifting off, North of Tonga.

The RNZAF is responsible for search and rescue operations within New Zealand’s Maritime Search and Rescue Area, which encompasses six million square miles including much of the South Pacific. As such, the saving of lives is, if you like, just part of their core business.

The second event was the Diversity Award, won by the Defence Force in the Equal Employment Opportunities Trust's annual Work and Life Awards in Auckland last month. Their policy was explained, by human resources manager, Laura Gillan, as aiming to tackle "the pervasiveness of masculinity in the military culture and the pressures put on women to conform to a masculine set of values and standards".

And the third event, of course, is the exceptional act of bravery which saw Willy Apiata honoured with the Victoria Cross for New Zealand for his actions whilst serving in Afghanistan in 2004.

This Ngapuhi hero risked the direct line of fire to save the life of his comrade; then carried his mate across seventy metres of broken, rocky and fire swept ground, facing the glare of enemy battle-fire and then returning himself, to counter-attack.

These three events represent the capacity to upskill – 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 the human life.

We hope, in the Maori Party, that in supporting this Armed Forces Law Reform Bill, that the principles guiding the reform of the New Zealand military justice system are aligned with the gallantry and inspiration which its own service men and women 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 requirements of the New Zealand Bill of Rights Act.

Kia ora tatou.