Visiting Forces Act 2004

The purpose of this Act is—
- (a) to update and amend the law relating to visiting forces to reflect recognised international practice; and
- (b) to enable New Zealand to give effect to status of forces agreements concluded with other States; and
- (c) to repeal the Visiting Forces Act 1939.

4 Interpretation

(1) In this Act, unless the context otherwise requires,—

applicable agreement, in relation to a visiting force, means a status of forces agreement entered into between New Zealand and the sending State (the text of which agreement may, as provided in subsection (2), be set out in regulations made under section 23)

armed forces, in relation to a sending State, includes any armed forces raised in any territory for whose international relations the Government of that State is responsible

Armed Forces of New Zealand has the same meaning as Armed Forces has in section 2(1) of the Defence Act 1990
civilian component, in relation to a visiting force, means the civilian personnel who are neither New Zealand citizens nor ordinarily resident in New Zealand, and who—
- (a) are employed by or in the service of the visiting force; or
- (b) are serving with an organisation that, with the approval of the Government of New Zealand, is accompanying the visiting force; or
- (c) are attached to or accompanying the visiting force
dependant, in relation to a visiting force, means a person who—
- (a) is not a member of the visiting force or its civilian component; and
- (b) is neither a New Zealand citizen nor ordinarily resident in New Zealand; and
- (c) is accompanying a member of the visiting force or its civilian component, and—
  - (i) is the spouse of the member; or
  - (ii) is not married to the member, but is living together with the member in a relationship that is recognised by the visiting force (whether the person is of the same or different sex as the member); or
  - (iii) is wholly or mainly maintained by the member; or
  - (iv) is in the custody, care, or charge of the member; or
  - (v) is one of the family of the member residing with the member
member of a visiting force—
- (a) means a person who, in accordance with the law of the sending State, is serving as a member of the visiting force; but
- (b) does not include a member of the armed forces of the sending State if—
  - (i) the person is attached to the Armed Forces of New Zealand under section 23A of the Defence Act 1990; or
  - (ii) New Zealand and the sending State have mutually determined, under an agreement between them, that the person is not to be regarded as a member of a visiting force
Registrar has the same meaning as in section 2 of the Births, Deaths, Marriages, and Relationships Registration Act 1995

sending State, in relation to a visiting force, means the State to which the visiting force belongs
service authorities of a visiting force—
- (a) means the authorities empowered by the law of the sending State to exercise powers of command, control, discipline, or administration over a visiting force, including (without limitation) any members of the force, members of its civilian component, and dependants; and
- (b) includes a service tribunal of a visiting force
service law, in relation to a sending State, means the law governing the discipline of, and the administration of justice within, the armed forces of the sending State
service tribunal of a visiting force—
- (a) means any officer, court, or other tribunal empowered by or under the law of the sending State to investigate, try, or otherwise dispose of charges brought against persons subject to the service law of the sending State; and
- (b) includes—
  - (i) a court of inquiry; and
  - (ii) any officer, court, or other tribunal empowered by or under the law of the sending State to review the proceedings of a service tribunal
visiting force means any part of the armed forces of another State that has been granted a right of entry into or passage through or over New Zealand.
(2) For the purpose of subsection (1), regulations made under section 23 may set out the text of any status of forces agreement entered into between New Zealand and a sending State, but the fact that a status of forces agreement is not set out in regulations made under that section does not affect its validity as an applicable agreement under this Act.

Compare: 1939 No 36 s 2; 1950 No 54 s 2; Defence (Visiting Forces) Act 1963 s 5 (Aust)

Section 4(1) Registrar: amended, on 24 January 2009, by section 47 of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).

5 Application

This Act applies in relation to any visiting force, its civilian component, and its dependants.

6 Act binds the Crown

This Act binds the Crown.

Part 2
Visiting forces

Jurisdiction

7 Command, control, and administration

The service authorities of a visiting force may, within New Zealand, exercise and perform all the functions, duties, and powers conferred or imposed on them by the law of the sending State in relation to the following matters:
- (a) the command of the visiting force:
- (b) the control of the visiting force:
- (c) the administration of the visiting force.
Compare: 1939 No 36 s 3(1)

8 Criminal and disciplinary jurisdiction

(1) To the extent permitted by an applicable agreement, the service authorities of a visiting force may, within New Zealand, exercise over members of the visiting force, members of its civilian component, and its dependants all criminal and disciplinary jurisdiction conferred on them by the law of the sending State.
(2) In the absence of an applicable agreement covering the matter, the service authorities of a visiting force have the primary right to exercise all criminal and disciplinary jurisdiction conferred on them by the law of the sending State in respect of any act or omission that—
- (a) is alleged to have been committed by a member of the visiting force, a member of its civilian component, or a dependant; and
- (b) if proved, would constitute an offence—
  - (i) solely against the property or security of the sending State; or
  - (ii) solely against the person or property of any other members of the visiting force, its civilian component, or dependants; or
  - (iii) that arises out of an act or omission done in the performance of official duty.
(3) In the absence of an applicable agreement covering the matter, New Zealand courts have the primary right to exercise jurisdiction in respect of any act or omission that—
- (a) is alleged to have been committed by a member of the visiting force, a member of its civilian component, or a dependant; and
- (b) is not covered by subsection (2); and
- (c) if proved, would constitute an offence against New Zealand law.
(4) Nothing in this Act affects or limits any power conferred on the service authorities of a visiting force by the law of the sending State, being a power to—
- (a) arrest, identify, detain, or search a member of the visiting force, a, member of its civilian component, or a dependant; or
- (b) enter and search any ship, aircraft, vehicle, or premises belonging to or occupied by the visiting force or a person referred to in paragraph (a); or
- (c) seize or take possession of any property, article, or thing found on or in the possession of any person referred to in paragraph (a) or in or on any ship, aircraft, vehicle, or premises referred to in paragraph (b).
(5) Section 99 of the Armed Forces Discipline Act 1971, with the necessary modifications, applies to property, articles, and things referred to in subsection (4)(c) that—
- (a) are seized or taken into possession by the service authorities of a visiting force; and
- (b) belong to any person other than a member of the visiting force, a member of its civilian component, or a dependant.
(6) This section is subject to section 9.

Compare: 1939 No 36 s 3(1)

9 Limits on effect of section 8

(1) The service authorities of a visiting force must not —
- (a) impose, or carry out, a sentence of death in New Zealand; or
- (b) do any act in New Zealand that would, if done by a member of the Armed Forces of New Zealand, constitute an offence against the Crimes of Torture Act 1989.
(2) The service authorities of a visiting force must not exercise a power referred to in section 8(4)(b) if the ship, aircraft, vehicle, or premises are also occupied by a person who is in New Zealand other than as a member of a visiting force, a member of its civilian component, or a dependant.

(3) The service authorities of a visiting force must not exercise a power referred to in section 8(4)(c) if the property, article, or thing is also in the possession of a person who is in New Zealand other than as a member of a visiting force, a member of its civilian component, or a dependant.

(4) If subsection (2) or subsection (3) applies, the service authorities of a visiting force may request the Attorney-General to obtain the issue of a search warrant under section 59(1) of the Mutual Assistance in Criminal Matters Act 1992, and the provisions of that Act, with the necessary modifications, apply in relation to the request.

10 Criminal proceedings in New Zealand against members of visiting forces

(1) Criminal proceedings may be instituted in a New Zealand court against—
- (a) a member of a visiting force; or
- (b) a member of its civilian component, or a dependant, who is subject to the service law of the sending State.
(2) However, once instituted those proceedings are stayed and must not proceed except with the consent of the Attorney-General.

(3) The Attorney-General must, before deciding whether or not to give consent under subsection (2), take into account the terms of any applicable agreement, and may make such inquiries as he or she thinks fit.

(4) Subsection (2) does not limit or affect any power exercisable under the law of New Zealand to arrest, identify, detain, or search a member of a visiting force, a member of its civilian component, or a dependant.

(5) The arrest of a member of a visiting force, a member of its civilian component, or a dependant is subject to section 11.

Compare: Defence (Visiting Forces) Act 1963 ss 9, 10 (Aust)

Arrest

11 Arrest of members of visiting forces

(1) If a person arrests a member of a visiting force, a member of its civilian component, or a dependant, the person making the arrest (or any of the person’s superiors) must notify the service authorities of the visiting force of the arrest as soon as practicable after the arrest.
(2) If a person charged with an offence against the law of New Zealand appears to the court to be a member of a visiting force, a member of its civilian component, or a dependant,—
- (a) the court must determine the period it considers reasonable to enable inquiries to be made for the purpose of determining the status of the person; and
- (b) further proceedings in respect of the offence charged are stayed for that period.
(3) If a person referred to in subsection (2) has been remanded in custody by order of the court and the Attorney-General directs that the person be delivered to the custody of the service authorities of the visiting force, the court must revoke the order and order that the person be delivered to the custody of those authorities.

Compare: Defence (Visiting Forces) Act 1963 s 12 (Aust)

Proceedings before service tribunal of visiting force

12 Application of provisions of Armed Forces Discipline Act 1971

The following provisions of the Armed Forces Discipline Act 1971, with the necessary modifications, apply in relation to proceedings held in New Zealand by a service tribunal of a visiting force:
- (a) section 150A (protection of military tribunals and courts of inquiry from civil proceedings):
- (b) section 150B (privileges and immunities of witnesses and of certain other persons appearing before military tribunals or courts of inquiry):
- (c) section 150C (power to summons witnesses):
- (d) sections 150E to 150G (contempt of military tribunals or courts of inquiry).
Compare: 1939 No 36 s 3(2), 4(5)

Section 12(a): substituted, on 1 July 2009, by section 81 of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).

Section 12(b): substituted, on 1 July 2009, by section 81 of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).

Section 12(c): substituted, on 1 July 2009, by section 81 of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).

Section 12(d): substituted, on 1 July 2009, by section 81 of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).

13 New Zealand courts not to try offenders for offences already disposed of

Section 21 of the Armed Forces Discipline Act 1971 (which relates to the principle that a person is not to be tried under that Act and under the civil law in respect of the same act or omission) applies in relation to a person who has been charged with an offence before, or had an offence taken into consideration by, a service tribunal of the sending State as if the offence had been dealt with under that Act.

Compare: Defence (Visiting Forces) Act 1963 s 11 (Aust)

Imprisonment

14 Manner in which sentence of imprisonment or detention may be served

(1) If a member of a visiting force, a member of its civilian component, or a dependant has been sentenced by a service tribunal of the visiting force to imprisonment or detention, the sentence may be served in accordance with Part 9 of the Armed Forces Discipline Act 1971.
(2) Part 9 of the Armed Forces Discipline Act 1971 applies for the purposes of this section as if—
- (a) the officer in command of the visiting force were a competent service authority; and
- (b) the prisoner were a service prisoner or service detainee (as the case may require).
Compare: 1939 No 36 s 4(3)

Legal proceedings before New Zealand courts

15 Proceedings of service tribunals

The following may not be called into question in any proceedings before a New Zealand court:
- (a) the proceedings of a service tribunal of a visiting force:
- (b) any sentence passed or order made by the service tribunal:
- (c) any investigation carried out by the service authorities of the visiting force that is relevant to the service tribunal’s proceedings:
- (d) the exercise, by the service authorities, of any power referred to in section 8(4) that is relevant to the service tribunal’s proceedings.
Compare: 1939 No 36 s 3(3)–(5); 1971 No 53 s 143

16 Proceedings relating to conditions of service of member of visiting force or civilian component

No proceedings in respect of the conditions of service of a member of a visiting force or a member of its civilian component may be brought in a New Zealand court.

Compare: 1939 No 36 s 3(4)

Application to visiting forces of laws applying to Armed Forces of New Zealand

17 Application of New Zealand laws to visiting forces

(1) If an enactment exempts the Armed Forces of New Zealand from all or any of its provisions, or modifies or adapts any of its provisions so far as they apply to the Armed Forces of New Zealand, the exemption, modification, or adaptation applies in relation to a visiting force, subject to such adaptations or modifications as may be necessary.

(2) If an enactment penalises misconduct by any person in relation to the Armed Forces of New Zealand or a member of the Armed Forces of New Zealand, the enactment applies in relation to a visiting force or a member of the visiting force with any necessary modifications.

(3) Any person authorised to perform or exercise any function, duty, or power, in relation to the Armed Forces of New Zealand may perform or exercise that function, duty, or power in relation to a visiting force.

(4) Subsection (3) does not limit any privileges or immunities enjoyed by the sending State under applicable international law.
(5) Without limiting subsections (1) to (4), the Governor-General may, by Order in Council,—
- (a) exempt a visiting force from all or any of the provisions of any enactment; or
- (b) modify or adapt any of the provisions of any enactment so far as they apply to a visiting force.
(6) An Order in Council made under subsection (5) may be made—
- (a) in relation to visiting forces generally; or
- (b) for the purpose of implementing any treaty, agreement, or arrangement between New Zealand and the sending State.
Compare: 1939 No 36 s 4(1), (5), (6)

Application of New Zealand Bill of Rights Act 1990

18 Application of New Zealand Bill of Rights Act 1990 to acts done at request or on behalf of visiting forces

(1) The New Zealand Bill of Rights Act 1990 applies to acts done in New Zealand at the request or on behalf of a visiting force by a person to whom or body to which section 3 of that Act applies.

(2) This section is for the avoidance of doubt.

Death of members of visiting forces

19 Inquiries relating to members of visiting forces

(1) If a death has been reported to a coroner under section 15(2)(a) or section 16(2)(b) of the Coroners Act 2006 and the coroner is satisfied that the person was a member of a visiting force, a member of its civilian component, or a dependant, then, unless the Attorney-General otherwise directs, the following provisions apply:
- (a) if the coroner has not opened an inquiry into the death, he or she must not open an inquiry into the death:
- (b) if an inquiry has been opened but is not then completed, the coroner must adjourn the inquiry.
(2) As soon as practicable after becoming aware of a death to which subsection (1) applies, the Chief of Defence Force must ensure that the Attorney-General is notified of the death.
(3) The Attorney-General may direct that a coroner or any other authority open or proceed with an inquest or other inquiry into a death to which subsection (1) applies. Without limiting the matters the Attorney-General may take into account in deciding whether to give such a direction, the Attorney-General must take into account—
- (a) the wishes of the sending State; and
- (b) the terms of any applicable agreement.
(4) When a direction referred to in subsection (3) takes effect, the following apply:
- (a) the provisions of the Births, Deaths, Marriages, and Relationships Registration Act 1995, other than section 42(2)(a) (which requires the notification of a Registrar before a body is removed from New Zealand):
- (b) the provisions of the Coroners Act 2006, except section 25 (which relates to viewing, touching, or remaining with or near the body).
(5) The Births, Deaths, Marriages, and Relationships Registration Act 1995 applies in relation to a death to which subsection (1) applies only to the extent provided in subsection (4)(a).
(6) If a death has been reported to a coroner under section 15(2)(a) or section 16(2)(b) of the Coroners Act 2006 and the coroner is informed that a member of a visiting force, a member of its civilian component, or a dependant has been or may be charged with an offence against the service law of the sending State relating to the death or its circumstances, then, unless the Attorney-General otherwise directs, the following provisions apply:
- (a) if the coroner has not opened an inquiry into the death, he or she must not open an inquiry into the death until the criminal or disciplinary proceedings against the person have been finally concluded:
- (b) if an inquiry has been opened but is not then completed, the coroner must adjourn the inquiry until the criminal or disciplinary proceedings against the person have been finally concluded.
(7) Subsection (6) does not prevent a coroner from—
- (a) taking evidence of the fact that the person has died, of the person’s identity, and of the place and date of death; or
- (b) providing information to a Registrar for the purpose of registering the death; or
- (c) authorising the release of the body.
Compare: Visiting Forces Act 1952 s 7 (UK); Defence (Visiting Forces) Act 1963 s 14 (Aust)

Section 19 heading: amended, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

Section 19(1): amended, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

Section 19(1)(a): substituted, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

Section 19(1)(b): substituted, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

Section 19(4)(a): amended, on 24 January 2009, by section 47 of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).

Section 19(4)(b): substituted, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

Section 19(5): amended, on 24 January 2009, by section 47 of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).

Section 19(6): amended, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

Section 19(6)(a): substituted, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

Section 19(6)(b): amended, on 1 July 2007, by section 146 of the Coroners Act 2006 (2006 No 38).

20 Witnesses at inquest or inquiry

(1) A member of a visiting force, a member of its civilian component, or a dependant is not a compellable witness for the purposes of an inquest or inquiry opened or proceeded with in accordance with section 19.

(2) A witness who is summoned to attend before a coroner or some other authority for the purposes of an inquest or inquiry opened or proceeded with in accordance with section 19 must not be asked any question the answer to which may prejudice the security or defence of New Zealand or the sending State.

(3) The Chief of Defence Force may give a certificate for the purpose of subsection (2) to the effect that any matter may prejudice the security or defence of New Zealand or the sending State.

(4) A certificate given under subsection (3) is admissible in any proceedings in a New Zealand court and is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the certificate.

Claims

21 Claims against visiting forces

(1) This section applies to any cause of action that arises in New Zealand in respect of—
- (a) the death of or bodily injury to any person; or
- (b) damage to any property.
(2) A person (other than a member of a visiting force, a member of its civilian component, or a dependant) is entitled to make a claim or demand against the Crown if—
- (a) the person suffers in New Zealand any damage, loss, or injury by, through, or in connection with the use of any ship, vehicle, aircraft, or equipment belonging to a visiting force; or
- (b) the person has or considers that he or she or it has a just claim or demand in respect of a cause of action to which this section applies against a member of a visiting force or a person acting for or on behalf of a visiting force.
(3) The claim or demand must be one that is not barred by section 317 or section 318 of the Injury Prevention, Rehabilitation, and Compensation Act 2001.
(4) The claim or demand must be one that the person would have been entitled to make under the Crown Proceedings Act 1950 against the Crown if—
- (a) the ship, vehicle, or equipment had belonged to the Crown, or the aircraft had been a service aircraft, or the member or the person so acting had been a member of the Armed Forces of New Zealand; and
- (b) the Government of the sending State to which the visiting force belongs had been the Crown.
(5) The Crown has, in relation to the person making the claim or demand, the same rights and liabilities as the Crown would have had if—
- (a) the ship, vehicle, or equipment belonging to the visiting force had belonged to the Crown or the aircraft belonging to the visiting force had been a service aircraft; or
- (b) the member of the visiting force or the person acting for or on behalf of the visiting force had been a member of the Armed Forces of New Zealand.
(6) The determination of a claim or demand under this section must have regard to any payment which the person has received or is entitled to receive, whether from the Crown or from any other person or authority, in satisfaction, wholly or partly, of the claim or demand.

Compare: 1950 No 54 s 10(1)–(5)

Part 3
Miscellaneous provisions

22 Evidence

(1) The Attorney-General may, after making any inquiries he or she thinks fit, give a certificate as to the status under this Act of—
- (a) any force, person, or property; or
- (b) any matter or thing for the purposes of any of sections 13, 15, 16, or 21.
(2) A certificate given under subsection (1) is admissible in any proceedings in a New Zealand court and is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the certificate.

Compare: Defence (Visiting Forces) Act 1963 s 27 (Aust)

23 Regulations

The Governor-General may, by Order in Council, make regulations providing for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

Compare: 1939 No 36 s 10

24 Act not in force in Tokelau

This Act is not in force in Tokelau.

Compare: 1939 No 36 s 7

25 Repeals and revocations

(1) The Visiting Forces Act 1939 is repealed.

(2) The orders and regulations specified in Schedule 1 are revoked.

26 Consequential amendments

The Acts specified in Schedule 2 are amended in the manner set out in that schedule.

27 Saving relating to existing status of forces agreements

(1) This section applies to every status of forces agreement between New Zealand and the sending State of a visiting force that had effect immediately before the commencement of this section.

(2) Every status of forces agreement to which this section applies is an applicable agreement under this Act.

s 25(2)

Armed Forces Equivalent Ranks Order 1983 (SR 1983/233)

Visiting Forces (Australian Naval Forces) Order 1978 (SR 1978/164)

Visiting Forces (Commonwealth Deserters and Absentees) Order 1983 (SR 1983/8)

Visiting Forces (Fiji Military Forces) Order 1960 (SR 1960/77)

Visiting Forces (New Zealand with Australia and United Kingdom) Order 1979 (SR 1979/285)

Visiting Forces Order 1980 (SR 1980/20)

Visiting Forces (Penal Arrangements) Order 1963 (SR 1963/61)