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The Defence Act is a dead letter

Written By: - Date published: 2:25 pm, May 15th, 2009 - 17 comments
Categories: defence, law and "order" - Tags:

No Right Turn wrote a post on an important point of governance that needs more discussion. Reproduced with Idiot/Savant’s permission.

Last week, we saw unprecedented scenes in Napier, as NZDF LAVs were deployed to assist police in dealing with an armed gunman. At the time, I was rather curious – the Defence Act includes strict rules on the use of the armed forces to assist police, and it was unclear whether they had been complied with. So naturally, I asked. The response arrived today:

The Prime Minister did not provide a written authorisation under section 9 (4) of the Defence Act 1990, as he was not requested to do so by the Commissioner of Police. Prime Ministerial approval is only required under section 9 (4) in cases where an emergency cannot be dealt with by the Police without the assistance of members of the armed forces exercising the powers that are available to constables.

The situation in Napier was dealt with by the Police and at no time were members of the Armed Forces required to exercise powers available to constables. Accordingly, there was no need for the Prime Minister to provide authority.

(Their emphasis)

Think about that for a moment. Tanks were deployed on the streets of a New Zealand city. If that’s not the sort of thing which requires Prime Ministerial (and Parliamentary) approval, it bloody well should.

Under this interpretation, the law is a dead letter. The army can be deployed to the streets to intimidate protestors or even kill people (neither, technically speaking, requiring a power available to constables); as long as they’re not arresting people, the law is absolutely silent. This is absurd, and it needs to be corrected as quickly as possible.

(And while I have your attention: kudos to NZDF, who dealt with my request from start to finish in less than 3 days. Their quick service on this puts other government departments to shame)

17 comments on “The Defence Act is a dead letter ”

  1. So basically…. “it’s OK because the army (supposedly) didn’t actually do anything”.

    Seems very strange indeed, and worrying.

  2. lprent 2

    From my recollection, this was almost exactly the reasoning that was used in 1981 when the EME’s were used at Eden Park to string barbed wire against protesters just up the road from my home.

    It eventually caused me to leave the territorials after I wrestled with the conflict for a year. There was absolutely no way that I wanted to get put in a position of suppressing protests because the government screwed up. Especially in the process of the governing party wanting to win an election by dividing the country.

    This situation isn’t similar, except for the use of military hardware. However the underlying principle is the same.

  3. Who is investigating the police response to the Napier Siege? The IPCA aren’t. I’d be interested to know what ordnance the NZ Army brought along to Napier, apart from the LAVs and a few jerry cans of fuel.

    PS. Love the Captcha for this post: folded government!

  4. notrealylawyer 4

    “The Prime Minister did not provide a written authorisation under section 9 (4) of the Defence Act 1990”

    doesn’t mean the PM didn’t authorise under 9(3). The Police are just saying they didn’t require the armed forces to act as constables and hence 9(4) didn’t apply.

  5. edoze 5

    Normally i try my best to stick a fork in your spoke.

    Today however i am in full agreement with you.

    This is a very serious matter, why was the army involved at all? Is our police force that inept? i do not believe they are, so it begs the question again. Why was the army involved at all?

    Was it because there was a army depot at the end of the road and the idea was, why not, they are there so lets just use em? If that was the logic, does that mean that the next time there is an AOS callout (or protest/riot) in the Auckland CBD, the army depot on Great North Road can supply forces?

    I dont think that the army is going to be used for domestic enforcement. Far from it, i think the armed forces are smart enough stick to its primary role of peace keeping.

    It is worrisome as it muddies the waters surrounding state enforcement and the extent that the brains trust are willing to allow trigger happy troops to play cops.

    Just because Jan Molenaar went nuts doesn’t give free reign for army/police/govt to act the same way.

    • Anthony Karinski 5.1

      I think the main reason the LAV’s were called in were to retrieve the slain police officer’s body. The media reports stated that they provided shelter to police officers during that operation.

      Still the law needs to be amended so the proper steps are taken before military involvement can take place.

      • edoze 5.1.1

        So the question should the ask – Why do the police not have units that can complete the same sort of protective maneuver?

        There is evidence over at tumeke http://tumeke.blogspot.com/2009/05/reflections-on-siege.html that the LAV fired off rounds. The campbell live piece clearly shows the army returning fire after a burst from Molenaar.

        Who allowed those soldiers to fire? and Are they being reprimanded or congratulated?

        • Lew

          I don’t think it’s actually clear that the LAVs fired live rounds – a commenter at KP reckons it was smoke grenades or somesuch.

          I agree – if live rounds were fired, it’s a Big Freaking Deal. But That matter hasn’t been established yet – at least not to my satisfaction.


          • edoze

            Have you watched the footage yourself? http://www.3news.co.nz/Video/Napier-gunman-had-troubled-past/tabid/367/articleID/103323/cat/64/Default.aspx

            I personally think its clear the soldiers in the LAV are firing rifles. What purpose would a smoke grenade have served during that skirmish? They were not planning on invading his home, as evidenced by the lack of police officers present and it was dusk, smoke grenades would have had little impact on the operation.

            They police reported only THEY shot twice. The army hasn’t said anything on the matter as far as im aware.

            Lynn my boy – its only ever harmless fun when i dig in, your not that terrible and as such i don’t find it overly abhorrent to agree with you.

    • lprent 5.2

      Ouch – that must have hurt…..

      It is an issue. Wouldn’t have minded if there had been some kind of civilian political approval. But this looks a bit ad-hoc from what I/S has dug out.

    • felix 5.3

      Just because Jan Molenaar went nuts doesn’t give free reign for army/police/govt to act the same way.

      Bang on.

  6. notreallyalawyer 6

    “Wouldn’t have minded if there had been some kind of civilian political approval.’

    at present all we know is the Armed Forces are saying 9(4) wasn’t used. That doesn’t mean another part of the act wasn’t. The act requires the PM’s approval but would have only required 9(4) if armed services personel were to act as constables.

    It isn’t stated clealy one way or the other if another part of the act was used.

    • Draco T Bastard 6.1

      Surly, when the armed forces come in to help out the police (ie, acting police) they would be assumed to be acting as constables.

  7. serpico 7

    Lawmen were acting in the public best interests.

  8. Rex Widerstrom 8

    …intimidate protestors or even kill people (neither, technically speaking, requiring a power available to constables)…

    Indeed the Police seem to jealously guard these “privileges” as their own, exercising them in various ways whenever possible (remembering, of course, that there’s more ways to intimidate than with barbed wire and LAVs… there’s flaky arrests and even flakier charges, for instance).

  9. The interview between John Campbell and the policeman in charge of the operation in the above linked clip made it clear that the army were acting at his request. This fits the chain of command from 9(5) of the Defence Act. It seems every other letter of the law was followed except asking the PM’s permission.

  10. jarbury 10

    This fits the chain of command from 9(5) of the Defence Act. It seems every other letter of the law was followed except asking the PM’s permission.

    That seems a pretty important step to skip though.

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