Declaration of inconsistency

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Not to be confused with the United Kingdom's declaration of incompatibility.

A declaration of inconsistency in New Zealand constitutional law is a declaration by a senior court that an act of parliament is inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA) in a way that has not been justified in a free and democratic society.[1] It was first made available as a legal remedy following the litigation in Taylor v Attorney-General, where the High Court declared that the prohibition of all prisoners from voting was inconsistent with the NZBORA.[2]

Overview

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New Zealand Bill of Rights Act 1990

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Main article: New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 guarantees a set of fundamental rights and freedoms of anyone subject to New Zealand law.[3] However, NZBORA allows for "justified limitations" on the rights and freedoms it guarantees. It says that the rights within NZBORA are subject to "reasonable limits prescribed by law [that] can be demonstrably justified in a free and democratic society".[4]

Development of case law

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The first suggestion that a declaration of inconsistency could be available was in 1992.[5] Following this, Temese v Police[6] and Quilter v Attorney-General[7] both suggested that it could be available in the appropriate case, but fell short of making a declaration. In Moonen v Film and Literature Board of Review,[8] Justice Andrew Tipping stated that the courts had a duty to indicate when legislation was inconsistent with the New Zealand Bill of Rights Act 1990, but it was unclear whether he meant a formal declaration of inconsistency or a mere indication of inconsistency contained within the judgment.

In R v Poumako,[9] it was determined to be inappropriate to make a formal declaration of inconsistency, however Justice Ted Thomas dissented stating that it was appropriate. It followed in Zaoui v Attorney-General[10] that the Court of Appeal held that Moonen and Poumako had established a jurisdiction for courts to issue a formal declaration of inconsistency. However, in R v Hansen,[11] while the Court of Appeal established that courts could inquire into the consistency of legislation with the New Zealand Bill of Rights Act 1990, the Supreme Court did not make a formal declaration of inconsistency.

Taylor v Attorney-General

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Main article: Taylor v Attorney-General

In July 2015, Justice Heath at the High Court of Auckland in Taylor v Attorney-General issued a formal declaration of inconsistency that an electoral law amendment introduced by the Fifth National Government that removed the ability of inmates voting rights in the Electoral Act 1993,[12] was an unjustified limitation under section 12(a) of the New Zealand Bill of Rights Act 1990, which prescribes voting rights to all citizens aged 18 years and over.[13][14][15] This was the first declaration of inconsistency in New Zealand.[16]

This was appealed to the Court of Appeal by the Attorney-General who argued that the court had no jurisdiction to issue a declaration of inconsistency unless it was expressly authorised by legislation, the Court of Appeal called this a "bold argument"[17] and said that "inconsistency between statutes is a question of interpretation...and it lies within the province of the courts."[18] Furthermore Speaker of the House David Carter in the case challenged the use of parliamentary proceedings in the High Court decision and argued that this was a breach of parliamentary privilege.[19] In its ruling, concluded that no breach of parliamentary privilege occurred and that senior courts had the jurisdiction to make a declaration of inconsistency.[20] This was then further appealed by the Attorney-General to the Supreme Court which dismissed the appeal and upheld the judgment by the Court of Appeal.[21]

New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022

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On 29 August 2022, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 received Royal assent and commenced on the same day. The amendment act introduced a legal requirement for the Attorney-General to notify parliament when a declaration of inconsistency is made, and further that the responsible Minister must present a report to parliament that details the government's response to the declaration.[22]

Make It 16 Incorporated v Attorney-General

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Main article: Make It 16 Incorporated v Attorney-General

On 21 November 2022, the Supreme Court issued a declaration of inconsistency in the Electoral Act 1993 and Local Electoral Act 2001 after ruling that the voting age of 18 was unjustified age discrimination under the NZBORA.[23][24] In the case, the court also affirmed the jurisdiction confirmed by the court in Taylor v Attorney-General and noted the passing of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022.[25]

References

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  1. ^ Lua error in Module:Citation/CS1/Configuration at line 2172: attempt to index field '?' (a nil value).
  2. ^ Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791.
  3. ^ Lua error in Module:Citation/CS1/Configuration at line 2172: attempt to index field '?' (a nil value).
  4. ^ New Zealand Bill of Rights Act 1990, s 5.
  5. ^ F M Brookfield “Constitutional Law” [1992] NZ Recent Law Review 231.
  6. ^ Temese v Police [1992] NZCA 190, (1992) 9 CRNZ 425; [1990-92] 3 NZBORR 203.
  7. ^ Quilter v Attorney-General [1997] NZCA 412, [1998] 1 NZLR 523; [1998] NZFLR 196; (1997) 16 FRNZ 298; (1997) 4 HRNZ 170.
  8. ^ Moonen v Film and Literature Board of Review [1999] NZCA 329, [2000] 2 NZLR 9; (1999) 17 CRNZ 159; (1999) 5 HRNZ 224.
  9. ^ R v Poumako [2000] NZCA 69, [2000] 2 NZLR 695; (2000) 17 CRNZ 530; (2000) 5 HRNZ 652.
  10. ^ Zaoui v Attorney-General [2004] NZCA 228, [2005] 1 NZLR 577.
  11. ^ R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1; (2007) 23 CRNZ 104; (2007) 8 HRNZ 222.
  12. ^ Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, s 4.
  13. ^ New Zealand Bill of Rights Act 1990, s 12.
  14. ^ Dr A S Butler and Dr P Butler Laws of New Zealand Human Rights: Rights and Freedoms (online ed) at [102] to [110].
  15. ^ Taylor v Attorney-General [2015] NZHC 1706 at [112].
  16. ^ Lua error in Module:Citation/CS1/Configuration at line 2172: attempt to index field '?' (a nil value).
  17. ^ Attorney-General v Taylor [2017] NZCA 1706 at [41].
  18. ^ Attorney-General v Taylor [2017] NZCA 1706 at [62].
  19. ^ Attorney-General v Taylor [2017] NZCA 1706 at [215].
  20. ^ Attorney-General v Taylor [2017] NZCA 215 at [34] and [146].
  21. ^ Attorney-General v Taylor [2018] NZSC 104.
  22. ^ New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, s 4.
  23. ^ Make It 16 Incorporated v Attorney-General [2022] NZSC 134.
  24. ^ Lua error in Module:Citation/CS1/Configuration at line 2172: attempt to index field '?' (a nil value).
  25. ^ Make It 16 Incorporated v Attorney-General [2022] NZSC 134 at [2].
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