Worth Richard: Prisoners' and Victims' Claims Bill — Instruction to Committee In Committee 
Worth Richard: Prisoners' and Victims' Claims Bill — Instruction to Committee In Committee 
[Volume:626;Page:20938] 
Dr RICHARD WORTH (National—Epsom) 
: 
 I would like to pose a question to the Minister in the hope that he may answer it. About 150 metres away from here is the Court of Appeal in Molesworth Street. Effectively it is our final appellate court because the Supreme Court is accessible only by leave. In the last 2 days the Court of Appeal has been hearing the case that has established the so-called mischief that this Government seeks to deal with in the Prisoners’ and Victims’ Claims Bill. It is bad practice and bad policy for the Government to seek to pre-empt whatever decision the Court of Appeal may make. 
Let me put this proposition to the Minister. One of the fundamental issues in the Court of Appeal case is whether the High Court was right in allowing the damages awards to be made. What will happen if in the next few days the Court of Appeal states that the High Court was wrong and that those damages awards should not have been made at all? This legislation will then have achieved no purpose because there will be no mischief at all to deal with. It is not beyond the bounds of possibility that that will happen. This Government—in my view incredibly unwisely—has tried to head off and pre-empt the decision of the Court of Appeal by putting Parliament into urgency. 
The doctrine of the separation of powers based on what Montesquieu said—which the Minister may well be familiar with—states that government has three elements: the legislature the executive and the judiciary. This Government has plunged Parliament into urgency in order to cross a very clear constitutional threshold that it should never cross. It is quite acceptable for Parliament in the exercise of its sovereign powers to reverse decisions of the courts. That has been done on a number of occasions. But we are not talking about that in this case. We are talking about this Government pre-empting the power of the Court of Appeal to make an effective decision in respect of the issues that are before it. That is constitutionally reprehensible. 
I was interested to hear the Minister say that what is going on in the Court of Appeal with regard to the decision currently under appeal would be “captured by the legislation”. He has not exactly spelt out what he means by “captured by the legislation” but one assumes that he is talking about the very issue about which I have underscored a concern: that Parliament in this instance is trespassing on judicial process. So the Minister should tread very carefully as he advances this bill. 
A number of members have spoken about issues relating to international treaties. Here again the Minister has been misled by his advisers. I would like to talk about the issue of international obligations for a moment. In National’s minority report on this bill we touch on that issue very directly. I believe that the officials who have advised the Minister have given him wrong advice—advice that he may come to rue. New Zealand is of course a party to a number of international human rights treaties that have been considered in the process of developing the bill. These treaties embody commitments that are binding at international law. The executive has the power and the authority to undertake foreign relations and as part of this to negotiate and enter into treaties. Where legislative action is required to give effect to obligations assumed under a treaty that legislation has to be passed by Parliament before New Zealand becomes a party to the treaty. So it is that we signed the international Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. We did that on 14 January 1986 and in accordance with our treaty obligations we ratified it on 10 December 1989.