A declaration of rights (or legislative wrongs) in New Zealand

The Supreme Court has confirmed that the High Court has jurisdiction to declare legislation inconsistent with the New Zealand Bill of Rights Act 1990.

The case

In Attorney-General v Taylor [2018] NZSC 104, a majority of the Supreme Court (Elias CJ, Glazebrook and Ellen France JJ) supported the High Court's finding that senior courts in New Zealand can declare legislation inconsistent with NZBORA.

The Attorney-General had appealed against the conclusion that jurisdiction existed.

The result, though not unexpected, was somewhat closer than might have been anticipated, with two judges (William Young and O'Regan JJ) dissenting: the first two judges to take the opposing view as Taylor has progressed through the courts.

As explained in an earlier Brief Counsel, the Government plans to legislate to formalise a power to make declarations of inconsistency in NZBORA. Despite the Supreme Court's decision, such legislation will still serve a useful purpose by establishing a process by which Parliament can respond to the declaration.

Background to the decision

In 2010, the Electoral Act 1993 was amended to extend to all prisoners a prohibition on voting which had previously applied only to those serving sentences of more than three years.

The Attorney-General accepted that the amendment was inconsistent with the right to vote protected by NZBORA,1 but argued that the High Court did not have jurisdiction to issue a declaration to that effect.

The story through the courts

In the High Court, Heath J granted the declaration on the basis that "where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right".2

The Court of Appeal largely agreed with Heath J, but held that Mr Taylor himself had no standing, as the amendment being challenged concerned the rights of prisoners imprisoned for less than three years and Mr Taylor is serving a considerably longer sentence.

The Supreme Court

- The majority

Glazebrook and Ellen France JJ grounded the jurisdiction to make a declaration in NZBORA itself. In reaching this view, they focused on the importance of the courts providing an effective remedy for a breach of NZBORA. There was nothing in the scheme of NZBORA that would prevent a court making a declaration, and to do so was consistent with the courts' usual function.

The Court explored the case law to date, finding support from Cooke P in Baigent's...