Penk ChrisCHRIS PENK (National—Helensville): Thank you Madam Assistant Speaker for the opportunity to lead the contribution to the debate on this side of the House. I acknowledge first the laudable intention of the Government and Minister Little who's just given an introduction to the intent of the Criminal Cases Review Commission Bill and indeed some of its operation.Minimising miscarriages of justice—it almost goes without saying—is indeed a laudable intention. I use the word minimising" in deliberately broad terms because a couple of options are presented to us as policy makers—one being to prevent as many as possible from occurring in the first instance and then second how to deal with the prospect that there might have been miscarriages of justice that have taken place. Of course it goes without saying again that both of those aims should be taken into account by policy makers but I would like to place on record that we believe that it may be fruitful if reform is required in this space regarding the possibility of miscarriages of justice to do everything that is possible to reduce the possibility that they take place in the first instance.That acknowledged I'd like to go on to structure some remarks around a couple of different themes—one being matters of constitution and the other being matters of construction. On this side of the House we have some concerns with the relationship of the respective branches of Government—executive legislature and judiciary although not particularly the legislature in this part—and the way that those interact and how those would be affected by the operation of this bill if it is passed into law. As for matters of construction there'll be some particular matters that we'd like to highlight and hope that these will be taken on board by the Government through the legislative process assuming that it does pass the reading and beyond.We will be speaking—I hope and expect—on a number of a different aspects of the bill. I'll just summarise those briefly before going into a bit more detail on a couple in particular. We'll be talking about the features of the commission as advertised in the bill itself and some pros and cons of those as we see them also the question of discretion the membership of the commission the possibility of introducing delays into our justice system—I note that it seems to be a matter that is generally accepted as true that there are already unacceptable delays in our court system and in our justice system more generally—expense the possibility of floodgates opening the prospect of duplication and the establishment of another Government agency which is not a step that should be taken lightly. Others are consideration of the standard required for referral and I do acknowledge that the Minister has already made some comments on that and those are duly noted and understood—there is possibility that a lack of accountability will arise from this mechanism. Again this is perhaps in comparison particularly with the current arrangements whereby the Minister himself or herself has something of a role. There is the place of victims too and their voice within this process as having been established is something we're also keen to discuss along with the particular investigative powers and the ways that the bill would operate in practice through the commission itself of course.So without going into those in more detail in the hope and expectation that others on this side of the House and perhaps others too on the other side of the House will comment on those I'd like to turn more particularly to examining the features of the commission as set out by the bill itself in the explanatory note. First it is to "receive applications from eligible persons or their authorised representatives". "Eligible persons" are defined—again I acknowledge the Minister has made this point—as living persons who have been convicted they feel unjustly or indeed their representatives but not on the other hand by those who feel as though a miscarriage of justice may have taken place. It is the other way round so to speak so that if a miscarriage of justice has occurred such that a person has not been convicted in circumstances that they would have. So I just note for the record something of a lack of balance in that regard.Second the element of promotion of its own activities in relation to the functions of the commission: that will be something that the commission is mandated to do. It is appropriate of course that its functions be known so that those who might be able to take advantage of it have the opportunity and the ability to do so—an aspect of the access to justice element of our rule of law. But I wonder if more thought could be given to improving the ability for members of the public in particular those to whom it might apply to actually know what the current arrangements are. So if phrases such as the "Royal prerogative of mercy" are somewhat inaccessible to those who might be in a situation of having suffered a miscarriage of justice then perhaps some thought should be given to that in relation to particular ethnic groups that the Minister has mentioned who are not availing themselves of that opportunity as it currently already exists.The undertaking of thematic inquiries in relation to miscarriages of justice in general: again laudable in intent but I wonder if that's not already a function of other parts of the executive and indeed the legislature. There is nothing to stop this House or indeed including via select committees and so forth and the Minister of Justice and the Law Commission and various other bodies—Government and non-government agencies and entities alike—making such inquiries so I wonder what the relationship of the commission will be in relation to those.The powers to obtain information are quite intriguing. I do fear that not enough thought has been given to how these will play out. The Minister has mentioned the question of privilege; he's not mentioned however—and I hope I am incorrect in saying—that the question of contempt of court is not raised in the bill. I don't know if standard judicial functions will apply to this body which is judicial in nature—at least to some extent. It does have the ability to review and it does have the ability to refer albeit not ultimately to decide. So that's something that I would encourage the Minister to consider as at least a matter to clarify one way or the other in terms of whether such standard aspects of criminal procedure will apply to the operation of the commission.I'd like to move now in my remaining time to a couple of other points. One is perhaps a matter of drafting more so than policy intent but it is none the less extremely important. At clause 17(1) of the bill we hear that "The Commission may refer a conviction or sentence to the appeal court if the Commission after reviewing the conviction or sentence considers that it is in the interests of justice to do so." I think I understand the intention which is to establish effectively a set of criteria such that referrals will be made but the word "may" after the word "commission" saying that the commission merely may refer a conviction or sentence in those circumstances seems to me the wrong word. Surely if the commission having reviewed the conviction or sentence does consider that it is in the interests of justice to do so then it shall or must refer such a conviction or sentence to the appeal court. Such is my view and on this side of the House—and again I would encourage and request that the Minister and his team take a close look at that aspect. No doubt there will be other opportunities to thrash out particular details of the bill but that's one that did strike me as rather significant at this early stage.My final comments relate to the membership of the commission. I'll just note reasonably briefly that the qualifications of the commission perhaps are intended to strike a balance between those who are legally qualified as that term is defined and those who are not but I will be making some suggestions—perhaps not in my remaining minute but perhaps through other means—by way of suggestion about how that could be tightened up a lot more to ensure that we actually have robust processes that reflect the very real needs of those who are engaged in the criminal justice system—not only those who believe that they have suffered a miscarriage of justice in the sense of being criminals but also those who are affected directly in terms of victims and of course the State and the people of New Zealand as a whole.Criminal law by definition involves us all—at least at a theoretical level and less involved than those who are sadly in the thick of it—but with these comments I'll bring my contribution to a close. But as I say I hope that the contributions on this side of the House along the lines of constitutional matters and also matters of construction of the bill will give pause for thought for the Minister on the other side of the House in proposing a bill that we see as somewhat flawed in terms of the way it interacts with the current system and as to specifics as well."