We considered a minor policy proposal during our scrutiny of the bill. As a result, we are proposing the creation of a new category of orders to be issued by the Chief of Defence Force (CDF) under the Armed Forces Discipline Act (AFDA) and the Defence Act 1990, to be called Defence Rules. Defence Rules would have the status of secondary legislation and be subject to presentation and disallowance oversight.

Currently, CDF is empowered to issue Defence Force Orders, which can cover a range of matters. They include administrative matters, such as human resources and pay entitlements, and military operational matters, such as security procedures. They also include legislative matters, such as those that relate to the functioning of the military justice system.

Currently, Defence Force Orders are secondary legislation which must be drafted as legislation and dealt with in accordance with the requirements of the Legislation Act 2019.

We consider that this is excessive for orders that are administrative or operational in nature. Instead, we propose that only orders issued by CDF that have legislative effect should be secondary legislation. To make the legislative status of these orders clear, we propose that they be called Defence Rules. Orders relating to any aspect of military justice would be considered legislative and therefore be required to be issued as Defence Rules.

Administrative and operational orders issued by CDF that do not have legislative effect should not be treated as secondary legislation and would not be subject to either presentation or disallowance procedures. These orders should continue to be described as “Defence Force Orders”.

This amendment would not introduce any new powers. It re-categorises orders issued under existing powers to distinguish between those that are legislative in nature, and those that are administrative or operational.

We recommend the following main amendments to create the category of Defence Rules in the relevant Acts:

• Clause 113D would replace section 206 of the AFDA (which currently relates to Defence Force Orders), to provide for the issuing of Defence Rules as secondary legislation. The standard publication, presentation, and disallowance requirements for new powers would apply to Defence Rules issued under the section.

• Clause 156H would replace section 27A of the Defence Act 1990. New section 27A would provide for the issuing of Defence Rules, in relation to specified matters that we consider to be legislative in character (which are currently dealt with by Defence Force Orders). Defence Force Orders issued under section 27 in relation to any other matter would no longer be secondary legislation.

Other minor and technical amendments are proposed to incorporate references to Defence Rules, to make drafting improvements to provisions that would be updated, and to make other changes to reflect that Defence Force Orders would be administrative instruments rather than legislative ones.

In clause 27 of the bill, we propose several amendments to section 98 of the AFDA, which authorises searches of persons arrested or detained.

The Land Transport Act 1998 was amended on 15 December 2025 by the Land Transport (Drug Driving) Amendment Act 2025. We propose two amendments to the bill as introduced to ensure consistency with the Act, in relation to authorisation of drug and alcohol testing.

We recommend amending clause 28, new section 99I of the AFDA. This would replace the reference to an “oral fluid testing device” with an “oral fluid screening device” as defined in section 2(1) of the Land Transport Act.

We also recommend amending section 99N to make provision for obtaining further oral fluid samples and to set a procedure for laboratory analysis of oral fluid samples. Our amendments would incorporate safeguards equivalent to those in the Land Transport Act.

We recommend amending clause 31 (new section 101AB of the AFDA) and clause 133 (new section 49A of the Court Martial Act) to remove references to an offence punishable by death. Public submissions pointed out that these were inconsistent with the bill’s amendment to section 13 of the AFDA to remove a reference to death sentences.

The Regulations Review Committee recommended that we scrutinise new section 116A of the AFDA, as proposed in clause 56 of the bill. We have done so and propose amending it.

New section 116A creates a new automatic right at the start of the trial process for an accused to elect trial by Court Martial, instead of summary trial by a disciplinary officer. New subsection (3) provides that if Defence Rules specify that a right of election is not available in relation to an offence against the AFDA, an accused charged with that offence does not have a right of election in relation to the charge. The Regulations Review Committee expressed concern that secondary legislation (in this case, Defence Rules) would be empowered to determine the scope of trial rights, potentially without sufficient scrutiny.

We recommend amending subsection (3) to replace the wording “against this Act” with“ …in relation to an offence that may be disposed of through the minor disciplinary sanction system”. This would ensure that only low-level offences, that have also been specified in secondary legislation as being able to be disposed of through the minor disciplinary sanction system, would not give rise to an automatic right to elect trial by Court Martial. The minor disciplinary sanction system would be an optional pathway to dispose of low-level disciplinary offending without the need to record a formal charge. We are satisfied that Defence Rules would be appropriate to determine which offences do not give rise to an automatic right to elect trial in the Court Martial.

Clauses 64 of the bill would replace section 117Q of the AFDA to address an issue identified through public submissions.

New section 117Q of the AFDA provides that a disciplinary officer may find an accused guilty of an included offence. We understand that this amendment is intended to align the military justice system with the civilian system.

One public submission suggested that the definition of “included offence” in clause 64 (new section 117Q of the AFDA) could be interpreted to prevent a finding of an included offence if both the first offence and the included offence were offences against the civil law of New Zealand under section 74(1) of the AFDA. This created the potential for the military justice system to treat certain included offences differently from how they would be treated in the civilian criminal justice system.

To avoid potential confusion, we recommend amending section 117Q so that “included offence” is defined using the terminology in section 143 of the Criminal Procedure Act 2011. This would also ensure that the body of case law on section 143 of the Criminal Procedure Act 2011 can inform interpretation of “included offence” in new section 117Q.

The Regulations Review Committee identified some Henry VIII powers in the bill as introduced; that is, powers that would allow secondary legislation to amend primary legislation. They are in clause 42, new sections 102A and 102B, which relate to the bill’s proposed creation of a minor disciplinary sanction system and the transfer of serious, complex or sensitive offences out of the chain of command. The Regulations Review Committee raised concerns that the categorisation of offences would affect the rights of persons charged. We considered these carefully during our scrutiny of the bill.

One submitter drew to our attention the fact that the three-strikes sentencing regime, and other civil laws such as the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, do not apply to charges laid under the AFDA. Such charges would include civil offences prosecuted under section 74(1) of the AFDA.

The submitter pointed out that this means different consequences would result for the same offending, committed by the same person, and resulting in the same sentence of imprisonment. If prosecuted in a civil court, the offender would face strike consequences if they were convicted again. However, if the offending was prosecuted under section 74(1) of AFDA, any further civil offence once the individual had left service would not carry automatic strike consequences.

We agree with the submitter’s view that this, together with convictions from the Court Martial not being entered on an offender’s Ministry of Justice-administered record, represents gaps in current legislation. We considered whether any improvement could be made by amending the bill, and sought information from advisers. We have concluded that more extensive work would be needed. Addressing this gap would likely require amending the Sentencing Act 2002, and potentially other legislation as well. It would also require operational changes to how information about offences is recorded and shared. We strongly encourage the Government to pursue this.