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International Non-Aggression and Lawful Use of Force Bill (Consistent) (Sections 19(1), 25(c)) [2009] NZBORARp 50 (14 August 2009)

Last Updated: 28 April 2020

International Non-Aggression and Lawful Use of Force Bill

14 August 2009

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

INTERNATIONAL NON-AGGRESSION AND LAWFUL USE OF FORCE BILL

1. We have considered whether the International Non-Aggression and Lawful Use of Force Bill (“the Bill”), a Member’s Bill in the name of Dr Kennedy Graham MP, is consistent with the New Zealand Bill of Rights Act 1990 (“Bill of Rights Act”). The Bill was introduced to the House of Representatives on 30 July 2009 and is currently awaiting its first reading. We understand that the next Members’ Day is scheduled for Wednesday, 19 August 2009.

2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching that conclusion we have identified possible inconsistencies with sections 19(1) (freedom from discrimination) and 25(c) (right to be presumed innocent) of that Act. Our analysis under those sections is set out below.

PURPOSE OF THE BILL

3. The Explanatory Note to the Bill states that the purpose of the Bill is to:

• ensure that the use of armed force by New Zealand is always in conformity with international law and in particular the United Nations (UN) Charter; and

o protect New Zealand leaders from external pressure to commit the New Zealand

Defence Force to any illegal action overseas.

4. The Bill makes it a criminal offence for any New Zealand leader to commit an act of aggression. An act of aggression is the use of armed force against the sovereignty, territorial integrity or political independence of another State, or in any other manner that is inconsistent with the purposes of the UN Charter.

5. The Bill does not make it an offence to use armed force in self-defence or when authorised by the UN Security Council. Any New Zealand leader considering deploying New Zealand’s armed forces must obtain written advice from the Attorney-General on whether such action is consistent with the UN Charter. That advice must be presented to the House of Representatives for its consideration.

6. The Bill also establishes a Special Prosecutor to investigate allegations of crimes of aggression and conduct prosecutions.

POSSIBLE INCONSISTENCIES WITH THE BILL OF RIGHTS ACT Section 19(1): Freedom from Discrimination

7. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to freedom from discrimination on the prohibited grounds of discrimination in the Human Rights Act 1993. Those grounds include ethnic or national origins (including nationality or citizenship).

8. In assessing whether a Bill gives rise to possible discrimination we consider whether the Bill

draws a distinction on one of the prohibited grounds and whether that distinction involves disadvantage to one or more classes of individuals.

9. Clause 5 of the Bill makes it an offence for any New Zealand leader to plan, prepare, initiate or execute an act of aggression. Clause 3 of the Bill defines a New Zealand leader as a citizen or a permanent resident of New Zealand, who is in a position in New Zealand or elsewhere, effectively to exercise control over, or to direct, political or military action by the State of New Zealand.

10. In restricting liability for the offence to citizens or permanent residents of New Zealand, the

Bill appears to draw a distinction on the basis of national origin. Nevertheless, it appears

that no disadvantage arises from the apparent distinction because only New Zealand citizens or permanent residents will be in a position to exercise control over, or to direct, political or military action by the State of New Zealand.

11. Only members of the political Executive, and possibly senior members of the New Zealand

Defence Force, will be in a position to exert such control or direction. We note that only

New Zealand citizens can be elected to the New Zealand Parliament and therefore serve as a members of the Executive.[1] Under Defence Force Orders, individuals who are not citizens or permanent residents of New Zealand can serve in the New Zealand Defence Force under some circumstances (usually for short periods of time). Despite this, we nonetheless

consider the possibility of such people serving in a leadership role within the scope of the Bill to be too remote to give rise to possible disadvantage. We have therefore concluded that clause 5 of the Bill does not give rise to discrimination under section 19(1) of the Bill of

Rights Act.

Section 25(c): Presumption of Innocence

12. Section 25(c) of the Bill of Rights Act affirms that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be presumed innocent until proved guilty according to law. The right to be presumed innocent requires that an individual must be proven guilty beyond reasonable doubt, and that the state must bear the burden of proof.

13. As noted above, clause 5 of the Bill makes it an offence for any New Zealand leader to plan, prepare, initiate or execute an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the UN Charter. Clause 3 of the Bill defines a manifest violation of the UN Charter as any action which, prima facie (i.e. on the face of it or at first appearance), contravenes the provisions of the UN Charter in a significant manner.

14. We have considered whether the use of the term prima facie lowers the standard of proof required by making prima facie evidence sufficient to meet conclusively this element of the offence. Prima facie evidence is evidence which is sufficient to establish a prima facie case in favour of the party adducing it. A party is said to have a prima facie case when the evidence is sufficiently strong for the other party to be called to answer it.

15. In our view, the term prima facie is used as part of the definition of this element of the offence. The prosecution has to prove that the “act of aggression” prima facie contravenes the UN Charter in a significant manner. The prosecution must still prove this element of the offence to the normal standard of proof in criminal cases i.e. beyond reasonable doubt. The defendant in turn will be able to present evidence that challenges the prosecution’s case that the act prima facie contravenes the UN Charter.

16. We therefore do not interpret this clause as imposing a lesser standard of proof on the Crown or as imposing a standard of proof on the defendant any higher than an evidential burden. The presumption of innocence affirmed in section 25(c) of the Bill of Rights Act is therefore not infringed by clause 5 of the Bill.

CONCLUSION

17. This advice has been prepared by the Public Law Group and the Office of Legal Counsel. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Footnote:

1. Section 47(3) of the Electoral Act 1993; Section 6 of the Constitution Act 1986.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the International Non-Aggression and Lawful Use of Force Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter.