Courts invited to speak up on rights

If the government has its way, the senior courts will soon have an express right to point out inconsistencies between legislation and the New Zealand Bill of Rights Act 1990 (NZBORA) and to hold Parliament to account.

We look at what it means and how it might work.

Proposed changes

A declaration of inconsistency with NZBORA is a declaration by a court that legislation is inconsistent with the human rights protected by NZBORA. Currently, the only similar power provided for by statute is the vetting role held by the Attorney-General.1

The proposed amendment will change NZBORA to specify that senior courts can make declarations of inconsistency. So far, this is no more than some recent judicial decisions have permitted.

What is new is that, in the event of a declaration of inconsistency, Parliament will be required to reconsider the relevant legislation. Parliament will then have the option to either amend or repeal the law, or to retain the status quo.

Wider context

News of this change comes just before the Supreme Court will consider in Attorney-General v Taylor whether the courts (in the absence of a statutory power to do so) have an inherent power to grant declarations of inconsistency with NZBORA.

In Taylor, the High Court made a declaration that a provision in the Electoral Act 1993 preventing all prisoners from voting was inconsistent with the right to vote protected by NZBORA. Justice Heath considered that the declaration was "firmly grounded in the obligation of the Court to declare the true legal position".2

The Court of Appeal upheld the High Court decision in Taylor, commenting that in some situations a declaration of inconsistency may be necessary "... to emphasise that the legislation needs reconsidering or to vindicate the right".3

Prior to Taylor, the existence of jurisdiction to grant a declaration of inconsistency has been one of the more hotly contested, if theoretical, questions of NZBORA law. The courts had traditionally been reluctant to grant such declarations in the context of a human rights statute that does not specifically provide for formal declarations, although acknowledging that indications of inconsistency with NZBORA may be useful to Parliament, and that the courts play an important role in identifying inconsistencies to Parliament through their judgments.4

Chapman Tripp comment

It is well-established that the courts will not interfere in Parliamentary processes (this is sometimes referred to as the comity...