Legal Beagle by Graeme Edgeler

25

Despite Simon Bridges' idiocy, does he have a point on overall (subject) select committee membership?

National’s new shadow leader of the House, Simon Bridges, is in the Herald this morning, expressing concern about select committee assignments for the new Parliament (or rather subject select committee assignments – this is only about the 12 select committees with subject areas that scrutinised legislation etc – it doesn’t cover the other committees).

Bridges’ comments are ridiculously over-the-top – this is in no way any sort of attack on democracy – but I am still somewhat sympathetic to National’s view. The House of Representatives does its job best when the opposition is best able to hold the Government to account. Yes, National agreed with the unanimous recommendation of the Standing Orders Committee, but it was only a recommendation. The new Standing orders approved in August do not specify how many Select Committee spots there should be, only that membership of Select Committees must be proportional to the overall membership of the House.

The Review of Standing Orders could have recommended putting the overall number of spaces in subject select committees into Standing Orders. It didn’t. It recommended that overall membership of subject select committees should be 96 MPs, but left the final decision up to the Business Committee at the start of the new Parliament. It is the decision (or non-decision) of the Business Committee that is up for debate now, not changes to standing orders agreed last term.

The question for the Business Commission should be: what overall level of Select Committee membership will best enable to House to fulfil its multiple roles in the New Zealand political system: scrutinising legislation, holding the government to account, and representing the views of the New Zealanders? The answer may be different depending on the makeup of the government, and of the opposition.

Now, the Standing Orders Committee recognised that its recommendation would mean that some MPs outside Government would not get to sit on select committees, and had further recommendations about how this could be managed, including the possibility of split membership. It may be that there could be more formality around this than anticipated, but the question still to be answered is: what is best for this Parliament?

Now, I had my fun with Simon Bridges of Twitter this morning, pointing out that not only was he on the Standing Orders Committee than made this recommendation, as leader of the House, he actually moved that the House adopt the changes to Standing Orders that it recommended. But he rightly pointed out that only overall membership of subject select committees isn’t actually in Standing Orders.

National, through Simon Bridges’ ridiculous, over-the-top musings have stated their view that overall membership of subject select committee should be 108, with the 12 subject select committees having an average of 9 MPs on them. We are yet to hear from other parties what the overall member they consider will best enable the House to fulfil its constitutional role. It may be that they have good arguments for why, in the present circumstances, the number is 96. This might, for example, be around the number of Government MPs who would have to sit on more than two committees (Cabinet Ministers don’t sit on subject select committees).

There will also be spaces on Parliament’s other committees, filled outside this overall proportional allocation: these include the Standing Orders Committee, the Officers of Parliament Committee, and the Privileges Committee, however these Committees don’t have a regular work programme, and only meet when required. There is also the Security and Intelligence Committee, which is kind of, but also kind of not, a select committee, and the Regulations Review Committee, which does have regular work, but it has a fundamentally different role than the 12 (formerly 13) subject select committees being discusses here.

But National has raised a concern that it thinks it will be better placed to fulfil its role as the opposition (and Parliament its role to hold the government to account) if overall membership of subject select committees would 108 (an average of 9 MPs across the 12 committees). This would still leave National with some MPs who would not get a position on a subject select committee, but not nearly 11.

Of course, we should recognise that if Labour and the Greens were in opposition, the recommendation of the Standing Orders Committee would mean that they would have some MPs who would miss out on spots on Subject Select Committees, but the question for the Business Committee remains: what will best serve this Parliament?

Decisions of the business committee require “near unanimity” to have effect. Naturally, the business committee hasn’t met yet (we don’t even have MPs until tomorrow!), but there have no doubt been informal discussions. National appears to be concerned that the Business Committee will be unable to reach near unanimity, and the Government will instead create membership of select committees by pushing through a motion in the House with a bare majority, over its opposition.

That sometimes happens. The Government has a right to govern, and National is not helping its case by accusing a Government simply following a recommendation that National supported when in Government of seeking to undermine democracy.

But this should not be a question of National only having themselves to blame, or National perhaps foolishly not considering what this would mean to them if they ended up in opposition. The question of the overall membership of subject Select Committees was left to the new Parliament to determine, and the question should be: Will the role of the House, or of the opposition, be diminished if the recommendation is followed?

I do not know the answer, but if the Government wants to assert that things will be fine with 96 places for MPs on subject select committees, it should state its case.

20

Election 2017: the no threshold hypothesis

As I now do each election (2014, 2011, 2008), below, the results of the 2017 general election if there was no threshold:

National – 54
ACT – 1

New Zealand First – 9
TOP - 3
Māori Party 
– 1

Labour – 44
The Greens – 8

(total 120 MPs)

Obviously, voters would behave differently if there was no threshold, but these numbers show that even with the strong disincentive that the threshold gives to people considering voting for minor parties, there are four MPs worth of voters who have been told that their views and interests are unworthy of being represented in Parliament.

100

Election 2017: the Special Votes

The 2017 General Election has a preliminary result.

The preliminary result is an unofficial count of all the ordinary votes cast at the election: votes cast on the day by people whose name appears on the printed electoral roll who voted at a voting booth designated for their electorate (including during advance voting)

The official count is still to happen. They're more careful with it, with a lot of cross-checking. The official count also includes the counting of special votes. Special votes are:

  • votes cast overseas;
  • votes cast by the telephone dictation servce;
  • votes cast on polling day by people voting at a voting place not desginated to serve their electorate;
  • votes cast by people who enrolled after the printed electoral roll was closed (including during advance voting);
  • votes cast by people on the unpublished roll; and
  • votes cast by people who think they’re enroled to vote, but aren’t (these votes don’t count).

This election there are a lot of special votes. The most ever. The Electoral Commission estimate is that there are 384,072 special votes, which is around 15% of the total.

Historically, the voting patterns of those who cast special votes differ from those who cast ordinary votes. Special votes in recent elections have tended to favour left-aligned parties. It is probably fair to assume that this general direction of special votes this will continue at this election. But with so many more special votes, whether it is fair to assume that the size of the effect will be similar is less clear.

That said, we don't have anything better to go one, so using the same rudimentary method I used last time (assuming the variance in special votes is the same size as it was at the 2014 election), along with the Electoral Commission’s estimate of the number of special votes at this election, I predict the following final result:

 

Preliminary

Projected

 

Vote share

Seats

Vote share

Seats

National

46.03%

58

44.86%

56

Labour

35.79%

45

36.55%

46

New Zealand First

7.51%

9

7.32%

9

The Greens

5.85%

7

6.32%

8

TOP

2.21%

0

2.35%

0

Maori Party

1.08%

0

1.12%

0

ACT

0.51%

1

0.51%

1

In 2014, National did 17% worse on special votes than they did with ordinary votes, while the Greens did 53% better. This was enough to see National lose one seat after special votes were counted, and the Greens to pick one up. Labour did 14% better on special votes in 2014, than they did with ordinary votes. This meant they closed the gap with National a little, but that wasn't enough for them to take a seat off another seat off them.

This time, assuming (perhaps foolishly) that the same basic numbers apply, and with the larger number of Special Votes still to be counted, both Labour and the Greens are within striking distance of of taking a list seat from National. If all parties do as comparatively well, or as comparatively poorly, on the special votes as they did in 2014, then two of National's list MPs, Agnes Loheni and Nicola Willis, would be out of Parliament (to enter if there are future list National Party list MP retirements), and both the Labour Party's Angie Warren-Clark Helen White, and the Green Party's Golriz Ghahraman would find themselves as MPs when the official result is announced in two weeks.

6

Dispatches from my twitter feed; or I salute your nerdery

People who follow me on Twitter, and people who read me here, may recognise that I like facts, and accuracy.

I will see a claim in a tweet, and wonder if it is true, or I will see a question in a tweet, and wonder what the answer is. I will want to know, and figure that the type of person who still follows me after all my tweets may at least be somewhat interested in knowing too. Sometimes I have the good sense to work out they won't (I recall once realising that the world didn't really need me to correct a humorous aside about which number book in the Baby Sitters Club series a particular title was) but that often doesn't win out. Mostly, it’s just Google, or Wikipedia. Occasionally I go to ridiculous lengths to accurately answer a query, or sate an interest.

OIA requests are not uncommon. The Ministry of Health recently provided such excellent service on a data-seeking OIA that I felt compelled to respond “A++ would OIA again” (After the Minister of Social Development told Parliament that she and MSD didn’t know how many beneficiaries had committed suicide, the Ministry of Health in just over two business-hours that, from 1998 to 2014, there were 576, not including superannuitants).

There have been at several at-least-partially successful complaints to the Ombudsman (the Aviation Security’s investigation into Gerry Brownlee, and the DIA over ministerial cars, after Simon Bridges told the NZ Herald he’d bought a couple of electric cars (in fact, one was bought by taxpayers)). There have been Court records requests, including one that required a formal application in Court (I may blog that at some point: it turns out that the IRD does a lot before they’ll seek an arrest warrant in a student loan case, but perhaps not enough to claim arrests are a “last resort”).

And sometimes there’s maths, especially around elections. I’m no Keith or Harkanwal, but in my small sphere, I try to add to the sum of knowledge, even if in very small ways.

Most of the time, my analysis goes into the ether. I can come back to it if it becomes relevant again, but it mostly just exists at a time and then is gone.

But because there’s an election on, and each of these has come up a couple of times recently, I figure there might be a wider audience for a few bits of simple maths I did recently.

How many votes are needed for two seats, or three?

First: a table showing the vote total and vote share at each MMP election that would have been necessary for a party below 5%, but winning an electorate seat, to get different seat totals (vote totals assume all parties that won seats kept their vote totals, percentages assume same overall number of valid party votes):

 

As you can see, the "rounding" tends to be quite generous, but the range of votes needed can vary quite a bit depending on the size of the "wasted vote" (ie votes for parties that don't cross the 5% threshold and don't win an electorate).

Where are New Zealand's bellwether electorates?

Second, with some recent discussion of bellwether electorates, I made a ranked list of New Zealand electorates by how close the party vote cast in that electorate was to the party vote over the whole country.

Despite some suggestions it might be Ōhāriu, I determined the electorate most closely aligned with the overall mood was Ōtaki. You can see how close it was by looking at the party vote each party got compared to nationwide vote (eg the Greens got 10.70% nationally vs 9.46% in Ōtaki; Labour 25.13% vs 24.84; National 47.04% vs 49.08%; and New Zealand First 8.66% vs 9.96%). It's not a perfect match, but a lot close than many others.

After having my interest piqued by the question, I calculated an index of disproportionality for each electorate, which shows how much it differed from the country as whole (an electorate with 0% would be an electorate that perfectly matched the nationwide party voter share for each party locally):

1. Ōtaki (2.15%)

2. Hamilton West (2.58%)

3. Hamilton East (2.71%)

4. Hutt South (3.01%)

5. Napier (3.01%)

6. East Coast (3.24%)

7. West Coast-Tasman (3.30%)

8. Invercargill (3.47%)

9. Nelson (3.48%)

10. Whanganui (3.57%)

11. Northcote (3.69%)

12. Wigram (4.21%)

13. Christchurch Central (4.30%)

14. Tukituki (4.67%)

15. Port Hills (4.94%)

16. Ōhāriu (5.02%)

17. Palmerston North (5.03%)

18. Papakura (5.22%)

19. Wairarapa (5.78%)

20. Rotorua (5.90%)

21. Upper Harbour (6.21%)

22. Whangarei (6.67%)

23. Rangitata (6.85%)

24. Northland (7.05%)

25. Rimutaka (7.07%)

26. New Plymouth (7.16%)

27. Christchurch East (7.36%)

28. Rangitīkei (7.38%)

29. Dunedin South (7.84%)

30. Mana (8.33%)

31. Maungakiekie (8.37%)

32. Te Atatū (8.41%)

33. Mt Roskill (8.65%)

34. Waimakariri (8.77%)

35. Waitaki (8.88%)

36. Coromandel (8.89%)

37. Kaikōura (9.03%)

38. Auckland Central (9.12%)

39. Taupō (9.21%)

40. New Lynn (9.64%)

41. Ilam (9.72%)

42. Botany (10.56%)

43. Mt Albert (10.74%)

44. Tauranga (11.03%)

45. Pakuranga (12.12%)

46. Helensville (12.29%)

47. Bay of Plenty (12.30%)

48. Waikato (12.53%)

49. North Shore (13.13%)

50. Taranaki-King Country (13.49%)

51. Rodney (13.75%)

52. Clutha-Southland (14.03%)

53. Dunedin North (14.48%)

54. Selwyn (14.61%)

55. Epsom (14.99%)

56. Hunua (15.12%)

57. East Coast Bays (15.15%)

58. Wellington Central (15.47%)

59. Tāmaki (15.47%)

60. Rongotai (15.77%)

61. Kelston (15.93%)

62. Manurewa (24.50%)

63. Te Tai Tonga (26.22%)

64. Te Tai Tokerau (31.72%)

65. Tāmaki Makaurau (32.12%)

66. Te Tai Hauāuru (33.21%)

67. Hauraki-Waikato (33.22%)

68. Manukau East (33.60%)

69. Ikaroa-Rāwhiti (35.15%)

70. Waiariki (35.45%)

71. Māngere (37.64%)

Did Stars Hollow Vote for Trump?

Finally, something even a little older, and lot more frivolous: After Gilmore Girls: A Year in the Life was released on Netflix, Creator Amy Sherman-Palladino and her husband and co-executive producer Daniel Palladino were doing the interview rounds and in an interview with Vulture were asked how fictional town Stars Hollow would have voted in the then-recent US Presidential election. They couldn’t agree. Despite the protestations of several (well, two) of the TV critics I follow on twitter that the question was somewhat ridiculous as “the idea that Stars Hollow is "rural America" shows you the exact standard of realism to measure the show by”, I spent half an hour or so cross-referencing voting data in Connecticut with Wikipedia’s list of Connecticut Towns governed by Town Meetings (they’re a real thing, with actual legislative power in several US states) to try to figure it out.

In the end, it was probably too close to call for a particular town, but Trump won 60% of Connecticut polling places in towns governed by Town Meetings, and such towns overall 227897 votes to 223375, so there's a definite chance. It even earned me this tweet from New York Times critic James Poniewozik:

Who could ask for more than that from a Twitter feed?

ps if you haven't already read Emma's two Q&As on how voting works (part 1; part 2), I recommend them.

77

A war crimes inquiry; or why Nicky Hager is wrong

On Tuesday, Nicky Hager and Jon Stephenson released Hit & Run: The New Zealand SAS in Afghanistan and the meaning of honour. The book details a 2010 raid in Afghanistan, carried out New Zealand SAS troop, with assistance from US air power. They say the attack was failure, leaving six civilian dead and 15 others wounded.

The authors make serious allegations, summarised in the book’s concluding chapter (page 110):

[The SAS] and their US allies attacked villages of civilians with helicopter gunships and SAS snipers, killing and injuring innocent people. Confident in their ability to keep everything secret, they needlessly burned and blew up home. Having messed up the first raid, they neither admitted fault nor tried to make amends, and undertook a second raid to destroy more homes. Later, having captured one of the insurgents, they beat him while he was blindfolded and bound, and transferred him to known torturers. They eliminated others with targeted killings. Knowing that international law requires breaches of human rights obligations to be reported and investigated, they did nothing. Instead they covered up and denied everything.

The war crimes and serious breaches of international and domestic law potentially committed by the SAS and its US allies include failing to distinguish between combatants and non-combatants, and the disproportionate use of force, especially the killing and wounding of civilians and attacking or bombarding dwellings that were undefended and were not military objectives; destroying the property of an adversary where that destruction was not imperatively demanded by the necessities of the conflict; failing to search and care for the wounded; and the cruel treatment and torture of a prisoner.

These aren’t just allegations of unlawful conduct by the SAS. These are allegations that individuals committed serious crimes.

I will not lay out the particular facts alleged to underlie each allegation, but one seems to be a particularly clear cut allegation (pages 79-81, footnotes omitted):

About 10 days after the first raid, the SAS launched a second raid on Naik. … An assault team, consisting entirely of SAS commandos, left the rest of the troops and headed straight to Abdullah Kalta’s house. According to one SAS member, they had not come to find Abdullah Kalta or nay of the insurgents, who were again far away. They had intelligence reporting that some families, including Abdullah Kalta’s, had started to rebuild their houses before winter arrived. … The reason for the second raid was to wreck the houses again, this time more thoroughly.

The SAS team that went to Abdullah Kalta’s house did not search. ‘They just went straight in’, they set the explosives, a warning came for everyone in the vicinity to take cover and, boom, ‘they just blew it up’. …

Asked why they did it, a SAS member replies, without hesitation, ‘It was to punish them. Yeah, just that … They went to destroy the house that were rebuilt.’ It was ‘pure revenge on the part of the [SAS] guys.’ They did it ‘just to fuck them up’. Another of the New Zealand personnel said an internal report explained that the point of the second raid was to scare the insurgents and discourage them from further attacks.

New Zealand has adopted the Rome Statute of the International Criminal Court. This treaty forms part of New Zealand domestic law. As part of the International Crimes and International Criminal Court Act, it makes a number of actions, long-recognised internationally as war crimes, express crimes under New Zealand law. A couple of these are in issue to this allegation. Section 11(2) of the Act, and Article 8(2)(b) of the Statute include the following as war crimes:

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

The maximum penalty for someone convicted of a war crime is life imprisonment.

The closing chapter of Hit & Run calls for an inquiry: (page 110)

There needs to be an independent investigation with full powers to question past and present military staff and with complete access to SAS and Defence force records.

The authors name officers, both within the SAS, and in the wider Defence force who “should all be required to appear and give evidence as part of an inquiry”, from then chief of defence LTGEN Jerry Mateparae, and others in senior leadership roles, as well as the SAS Commander, the SAS Commander in Afghanistan, and the SAS ground commander who was on the raid, listed as Captain D.

The book doesn't expressly detail the type of inquiry the authors seek, but I was able to ask Hager a question as part of the live chat held with Nicky by Fairfax journalist Henry Cooke the day after the book was published. Cooke asked Nicky a question I had submitted via twitter:

Hager replied:

The answer is no we have not. As far as I know the New Zealand Police are not the place where you take allegations of war crimes. If there ends up being an investigation into serious breaches of international law and war crimes, then that should logically be well down the track, after there has been an independent commission of inquiry into the events of the book.

This suggestion is wrong-headed. We do not need an inquiry, we need an investigation.

The Rules of Customary International Humanitarian law have been helpfully summarised by the International Committee of the Red Cross, and they provide as clear an authoritative statement of New Zealand’s obligations under customary international humanitarian law as you will find:

Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

And this is the problem with all the calls for an inquiry to date. Lots of people are saying that there appear to be war crimes. No-one appears to have appreciated what that means. It means we need an investigation into war crimes. In New Zealand, this is a job for the Police.

I think about this not only from the perspective of New Zealand legal obligation to investigate allegations of war crimes, and the right of victims of alleged war crimes to have those allegations investigated, and prosecuted, but also from the perspective of those who are alleged, even if implicitly, anonymously, or collectively, to have committed war crimes.

I experience these sorts of dichotomies quite a lot. With recent stories of schools and teachers locking disabled children in seclusion rooms, or of youth being detained in police cells, or mentally ill people being tied down in prison, my first thought is often: it could be a breach of this right, or those involved may have committed this crime; but my second thought is usually: people being investigated have rights – the presumption of innocence, the high standard of proof, the requirement to establish a guilty mind, the right to silence. At that point, knowing only what I’ve read in the news media, I usually decide not to blog about my theories of criminality. And people being investigated have the same rights whether they’re a gang member, a school teacher, a serial rapist, a prison guard or police officer or soldier, a murderer, or even a judge.

This does not come “well down the track”. We have an obligation to start now, and those who may be charged have a right to expect it to be done properly. The longer we wait, the more hazy witness recollections become; physical evidence may deteriorate; documentary evidence or videos may degrade or become harder to find; witnesses may move, and become harder to locate, or may die. There is a reason that there’s a right to be tried without undue delay – the longer between the making of an allegation, and the holding of a trial, the harder it is to ensure a fair trial.

And there’s the big one, important to not only those accused of war crimes, but also to New Zealand as a country: there is a right to have the investigation (and if appropriate, the prosecution) conducted in New Zealand. These are allegations of war crimes; allegations of offences recognised as war crimes under the Rome Statute of the International Criminal Court. If there is no war crimes investigation in New Zealand, the Prosecutor of the International Criminal Court can conduct one instead.

This does not need to wait for Government to settle terms of reference on a commission of inquiry. Waiting until one is complete may just take the matter out of our hands.

I used the words *need*, *inquiry* and *investigation* deliberately. An inquiry could be important, and useful. It could determine what happened, who was responsible, and what changes should be made to reduce the risk of it happening again. It could see who knew what and when, whether the public, of the government, or others in the Defence Force were misled and by whom.

An inquiry could advance Hager’s proposal to “reduce the influence of the SAS within the Defence Force”, (p 113) or to provide information to enable “the public and Parliament … to decide whether they want to maintain a force primarily to contribute to other countries’ wars” or whether the SAS instead of “serving secretly under US command … should be scaled down and become a specialised force within infantry troops, available to support peacekeepers overseas and other agencies at home.” (p 114)

But holding an inquiry is not enough for New Zealand to meet its obligation to investigate allegations of war crimes. Holding an inquiry, while not conducting an investigation would compound any breach of international humanitarian law. The independent commission of inquiry Hager seeks would have the power to demand documents, and summon witnesses. But Commissions of Inquiry have limited purposes. Commissions of Inquiry are not criminal investigations. From the Inquiries Act:

11 Limits to scope of power of inquiry

(1) An inquiry has no power to determine the civil, criminal, or disciplinary liability of any person.

This is a problem for an inquiry of the type so far suggested (not only by Hager, but also by other journalists, and even politicians). An inquiry cannot be allowed to interfere with a possible prosecution. The possibility that evidence heard by a commission of inquiry could be evidence that might be heard by a jury at a criminal trial (or more importantly, might be inadmissible at a criminal trial) could mean that there would need to be substantial suppression orders, lest the fairness of future criminal proceedings be threatened.

The necessity of avoiding prejudice to a trial, or even to a police investigation is recognised in the Inquiries Act, which provides that an inquiry can be suspended while the results of other investigations continue:

16 Power to postpone or temporarily suspend inquiry

(1) An inquiry may, after consultation with the appropriate Minister or appointing Minister, as the case may be, postpone or temporarily suspend the inquiry if—

(a) another investigation is being, or is likely to be, carried out into matters relating to the inquiry; and

(b) the inquiry is satisfied that to commence or continue the inquiry would be likely to prejudice—

(i) the investigation referred to in paragraph (a); or

(ii) any person interested in that investigation.

(2) The inquiry must commence or continue when it is satisfied that to do so would no longer prejudice the other investigation or any person interested in it.

Depending on the circumstances, a Commission of Inquiry can look into matters that may be related to questions of criminal liability. The Canterbury Earthquakes Royal Commission reported on the collapse of the CTV building in 2012; and a decision on whether to prosecute is still yet to be made.

But an inquiry into building codes and council practices is very different from one the purpose of which would appear to be to determine whether war crimes and other breaches of international human rights obligations have occurred. The Canterbury Earthquakes Royal Commission reported years before the criminal investigation into the CTV collapse even commenced. And there wasn’t an international prosecutor empowered to investigate if New Zealand did not.

More importantly, the allegations people are currently seeking to be investigated by a commission of inquiry, whether ultimately backed by sufficient evidence or not, are clearly allegations of war crimes. Criminal liability is not a peripheral issue. With the clear possibility of criminal charges following (whether in New Zealand, or internationally if New Zealand takes no action), any hope for an inquiry with full powers to demand the attendance of witnesses to answer questions may be forlorn.

While commissions of inquiry have broad powers to demand evidence and summons witnesses, the powers to compel answers only go so far. And people who may face criminal prosecution cannot be forced to give evidence at an inquiry about issues that may impact on possible charges they may face.

Soldiers don’t have a union as strong as the Police Association to look after their interests, but at some point, those implicated in the allegations contained in Hit & Run are going to get legal advice, and that advice will be very clear, especially for those on the ground who took part in the raids: shut up.

Earlier this week David Fisher and Nicholas Jones of the New Zealand Herald, and Eileen Goodwin of the Otago Daily Times published a story about how, in an investigation of whether National MP for Southland, Todd Barclay, had unlawfully recorded conversations, he had refused to give a statement to police. I was reminded of two things, first the incompetence of police in their last big investigation into allegation of illegal bugging, and second of the words of Robert H Jackson, the Chief US War Crimes Prosecutor at Nuremberg, who, as a Supreme Court Justice a few years later, reminded lawyers:

"Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."

It doesn’t matter whether you are Teina Pora, Todd Barclay, or an SAS trooper, it remains good advice. It doesn’t matter if you are clearly guilty; guilty (but can they prove it?); or innocent. Any lawyer worth their salt will tell you to shut up. And no Commission of Inquiry will be able to compel evidence from anyone present while a prosecution remains a possibility.

I do not know whether allegations contained in Hit & Run are true, or whether the allegations, even if true enough to properly found a charge, are capable of being proved by admissible evidence beyond a reasonable doubt. But the Soldiers who were present, those who ordered them to take part, and everyone else involved at whatever level of the New Zealand Defence Force or the New Zealand Government has rights. And one of those rights is to have any allegations against them that need investigating, investigated by a competent authority, without improper pressure being placed on the investigator. They also have the right to have any decision over whether to lay a charge, decided only after a thorough investigation, and considering not only incriminating evidence, but evidence that tends to show their innocence. This is most likely to happen if any criminal investigation begins as soon as possible, and is not prejudiced by a full public inquiry.

There is nothing to stop the Government starting an inquiry. There will be some aspects of what has happened that will be able to inquired into without risking prejudice to a Police investigation, but, as is generally the case with coronial inquests, we will need to recognise that not every question of importance can be answered while questions of whether there will be criminal charges remain unanswered.

In New Zealand, such investigations are a matter for the Police, and decisions over whether to prosecute (in the High Court) are ultimately for the Solicitor-General or Crown Prosecutors. Alternatively, allegations against soldiers may be a matter for the Military Police, leading the possibility of trial at a Court Martial. Neither will have much experience investigating war crimes. In the circumstances, I think the Police are better placed in the case.

There are sometimes reasons to prefer a Court Martial. For example, if the result of the investigation is that there is insufficient evidence to file war crimes charges, but that charges under the Armed Forces Discipline Act for failure to comply with the rules of engagement could be laid against some involved, this could only be done at a Court Martial. However, that is not possible here. There is a time limit for such charges to be brought to Court Martial, and it has well passed. A Police investigation would likely involve assistance from Military Police, and Crown Lawyers in any event.

Nicky Hager and Jon Stephenson have authored a book alleging war crimes; they’re not necessarily certain who, but the describe events that could amount to war crimes committed by New Zealanders. This has consequences.

When confronted with allegations of war crimes, New Zealand is obliged not just to find out what happened, but to investigate, and if appropriate, prosecute. But it would be wrong to pursue an inquiry that may prejudice the rights of those now under suspicion of committing war crimes. Commissions of inquiry do not investigate crimes. This is the job of the Police.

Where Police fail to investigate an alleged war crime, New Zealand has agreed, with the approval of Parliament, that the Prosecutor of the International Criminal Court can step in instead. We should not let that happen.