Justice Helen McQueen at Tuesday's hearing. Photo / RNZ, Samuel Rillstone
By Anneke Smith of RNZ
A Lake Alice survivor has asked the High Court to review Cabinet’s decision on redress and formally find it breaches his international and domestic human rights.
Flaxmere man Malcolm Richards was drugged, raped, beaten and shocked at the psychiatric facility in the 1970s.
He declined a $150,000 redress payment last year, opting instead to legally challenge Cabinet’s decision on the framework as unfair and unlawful.
Richards sat with other survivors and supporters in court on Tuesday as they heard technical submissions on the judicial review from his lawyer Chris Griggs.
Griggs posed three questions to the court: Is Cabinet’s decision reviewable? Did it breach Article 14 of the United Nations’ Torture Convention and Section 9 of the New Zealand Bill of Rights? And what relief, if any, should the court grant?
Judicial reviews are a legal tool affected members of the public can use to test if an action or decision made by the Government or other public bodies abides by the law.
Cabinet decisions are not exempt and, in this case, Griggs has argued the court was in a position to review December’s decision because it was made in the context of international and domestic human rights laws.
“Very clearly, Cabinet believed that it was giving effect to legal obligations and it was right to do so because it was giving effect, or at least it was supposed to give effect, to legal obligations and we say it failed to do so.”
Griggs said the torture convention was both international law and domestic law because it had been “explicitly incorporated” into the Crimes of Torture Act 1989.
Cabinet had departed from this law in pre-determining ex gratia payments and not ensuring torture survivors had an enforceable right to fair and adequate compensation in the legal system, Griggs argued.
“What the process needed to do is actually listen to all of the survivors, hear their stories and then make a decision about what redress was appropriate for them.”
Griggs said while it was understandable a number of survivors had taken the Lake Alice torture payment (more than 100 of 141 ruled eligible), it didn’t mean it was fair or lawful.
“As a cohort, they are older people who have suffered the consequences of torture when there are children, vulnerable children, at the hands of the state.
“It’s respectfully submitted that the Crown ought not to benefit from the vulnerability of the survivors by imposing an unlawful redress framework which cannot provide fair and adequate compensation, especially in the most egregious cases, such as that of [Malcolm Richards].
“This redress framework is rotten to the core, whether or not there are any laudable objectives or the Crown trying to do the best it can, fundamentally this redress framework is unlawful at a very basic level.”
Griggs said the court should provide urgent relief for Richards.
Speaking for the Attorney General, Crown lawyer Kim Laurenson said the Government did not accept the court was in a position to review Cabinet’s decision against international human rights.
However, Cabinet had followed the law, Laurenson said.
“The defendant says that the scheme [Cabinet] has established took into account and is consistent with the requirements of the Bill of Rights Act.
“Although she does not accept that a prerogative decision can be reviewed in this court for compliance with New Zealand’s international obligations, she says nonetheless the Cabinet material makes it plain that those obligations were taken into account and the scheme is consistent with those that apply.”
Laurenson said Richards and others had always been free to pursue redress through the court system, adding Cabinet had set up expedited payments to give older, sick survivors the ability to access relief now.
“The plaintiff has a free-standing ability to sue in this court ... and if the plaintiff does have a stand-alone ability to sue under the crimes of torture act, then that’s something he could consider availing himself of.”
Laurenson added that the Attorney General did not accept some of the international guidelines cited by Griggs were binding.
“The defendant says that what this Court is being asked to do in respect of the reservation, to assess the legality of it in the way that the court is being asked to do here, is novel, and that none of the material that has been put before Your Honour shows you another court doing something similar.
“That’s because conventions are international agreements between states, and it’s for other states to raise those issues with New Zealand.”