Cabinet has approved, in principle, a move to amend the New Zealand Bill of Rights Act 1990 to provide a statutory power for the senior courts to make declarations of inconsistency under the Bill of Rights Act, and to require Parliament to respond.
Justice Minister Andrew Little and Attorney-General David Parker today welcomed the decision.
Andrew Little says, “Declarations of inconsistency can perform an important function by informing Parliament that the senior courts consider an Act of Parliament to be inconsistent with the fundamental human rights affirmed in the Bill of Rights Act.
“The Government supports the senior courts making declarations of inconsistency where there is a legislative power. As there is currently no explicit power in the Bill of Rights Act, amending the Act will allow for this.”
David Parker says: “Parliament occasionally passes laws inconsistent with the Bill Of Rights Act. Currently there is no established route for Parliament to revisit the issue.
“The change proposed is to amend the Act to confer an express power for the courts to make a declaration of inconsistency. That would trigger reconsideration of the issue by Parliament.”
The Courts would not be able to strike down statutory law and Parliament would retain its sovereignty. After reconsideration Parliament could amend, repeal or stick with the law as originally passed.
The Government will carry out further work to enable the change proposed, while protecting Parliament’s sovereignty.
New Zealand Bill of Rights Act 1990
The New Zealand Bill of Rights Act 1990 is one of the most important pieces of legislation in New Zealand for the promotion and protection of human rights. It sets out to affirm, protect and promote human rights and fundamental freedoms in New Zealand. It also affirms New Zealand's obligations under the International Covenant on Civil and Political Rights.
What is a Declaration of Inconsistency?
A declaration of inconsistency is a formal statement, granted by a court as a remedy, that legislation is inconsistent with fundamental human rights protected by the Bill of Rights Act. The declaration informs the public and Parliament that in the court’s view, an Act is inconsistent with fundamental human rights. A declaration of inconsistency does not affect the validity of the Act or anything done lawfully under that Act. Currently, there is no explicit power in the Bill of Rights Act to issue declarations of inconsistency.
The matter of declarations of inconsistency has also been the subject of recent court proceedings. In 2015, in Taylor v Attorney-General, the High Court issued a declaration of inconsistency for the first time. This declaration was that a provision of the Electoral Act 1993 disqualifying all sentenced prisoners from registering to vote is inconsistent with voting rights affirmed by the Bill of Rights Act. The matter of whether the senior courts can issue such a declaration has reached the Supreme Court, which will hear an appeal in March 2018.
Previous consideration of Declarations of Inconsistency
In 2011, the Constitutional Advisory Panel was appointed to listen to and record New Zealander’s views on constitutional issues. As part of its consultation with the public, it considered amendments to the Bill of Rights Act. Its recommendations, released in 2013, included that the Government explore options for improving the effectiveness of the Bill of Rights Act such as giving the judiciary powers to assess legislation for consistency with the Bill of Rights Act.