Smith Lockwood: Diplomatic Privileges and Immunities Amendment Bill — In Committee 
Smith Lockwood: Diplomatic Privileges and Immunities Amendment Bill — In Committee 
[Volume:615;Page:11261] 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 I believe that in clause 3 which inserts new sections 10D and 10E into the principal Act there is an important issue at stake that is very closely aligned to what my colleague Dr Wayne Mapp and also Stephen Franks have been debating. What strikes me about sections 10D and 10E in particular is this. I have been a great supporter of the fact that under New Zealand’s constitutional arrangements the power to enter into treaties resides with the executive. I think that is terribly important. It is not the case in the United States and I believe the fact that Congress retains that power causes the United States some difficulties. Here we have a situation where this legislation will give effect in our domestic law to an international treaty the Rome Statute and that is fine. But we have always argued in supporting the power of the executive to enter into treaties that where those treaties affect our domestic law this Parliament should then have the power to decide whether it is prepared to amend our domestic law in order to accommodate those treaties. I would like the Minister in the chair Marian Hobbs to address the issue that the wording of new sections 10D and 10E circumvents the power of this Parliament to do that. If articles 18 to 22 of the international treaty—the Rome Statute—are changed through the process of change to that agreement those changes will automatically become part of our law in New Zealand without this Parliament having any further say in the matter. 
Let us say for example that at the moment—although this is not clear on the face of this legislation—articles 18 to 22 of the agreement set out a set of diplomatic privileges and immunities that Mr Franks and Dr Wayne Mapp may be satisfied with. It may set out a set of privileges and immunities that do not protect witnesses from breaking New Zealand’s criminal law for example or from not having to pay their parking fines or anything like that. But the point I am making is that if the international agreement is changed—in other words if the international treaty is changed—then because of the way that this legislation is worded our domestic law will be automatically changed. That I believe will bring into disrepute the power of our executive in this land under our constitution to enter into international treaties. I support that power; I believe it is a very important power. I have been New Zealand’s international trade Minister and I support the power of the executive to enter into treaties. But I think this kind of legislation which then enables those treaties to automatically amend our domestic law needs to be thought through quite carefully. 
So while I support our granting immunities and privileges to the International Criminal Court I think that the way it is done in this bill is not good. I am sure the Minister can see that if the articles of the Rome Statute or the articles of the agreement that is consequent upon that are changed by international agreement so will our domestic law be changed. As I look at new section 10D(2)(d) I see any changes to articles 18 to 22 of the agreement will automatically change our domestic law. If I am wrong I am happy to accept that but I would appreciate it if the Minister in the chair could explain why I am wrong. But if I am not wrong that is a serious issue. We have always argued in the past that where an international treaty changes our domestic law this Parliament should have the power to decide that. But according to the way this bill is worded instead of putting into the legislation what the international treaty has required New Zealand to do we have worded it in such a way that any change to that international treaty will automatically change our law. We simply refer to articles to 18 to 22 of the Rome Statute without setting out what they state. So if those articles are changed there is no reason that this Parliament would have the chance to pick up the change and look at it. There could be a change that states that witnesses can be absolutely immune from the criminal law of the country in which the International Criminal Court is operating. Let us say that became an agreed change to the international treaty. This Parliament would then have no say about how that affected our domestic law.