Background
A declaration of inconsistency is one of several tools in a judge’s arsenal to protect against oppressive or arbitrary use of power in New Zealand.
Declarations of inconsistency are formal statements by a court that a law, or part of a law is inconsistent with one of the fundamental rights protected under the New Zealand Bill of Rights Act (NZBORA).
The Court’s power to issue a declaration of inconsistency was upheld by the Supreme Court in Attorney-General v Taylor [2019] 1 NZLR 213. This case concerned the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 which prevented prisoners from voting, and was inconsistent with the right to vote in general elections under NZBORA. The Court held that, despite there being no express provision within NZBORA, the power to make a declaration of inconsistency aligns with the courts’ judicial function and purpose. However, there was no requirement that Parliament must respond to a declaration. In Taylor, Parliament chose to respond by amending the Electoral Act to allow prisoners to vote if serving a sentence of less than 3 years.
In 2022, Parliament passed the Bill of Rights (Declarations of Inconsistency) Amendment Act. The Act requires the Attorney-General to notify Parliament of a declaration made by the courts within six sitting days. The Minister responsible for the legislation must then provide a Government response within six months of notification.
How is a declaration of inconsistency made?
A person may apply to a senior court (High Court and above) seeking a declaration of inconsistency where a right under NZBORA has been limited by another piece of legislation. The Human Rights Review Tribunal can also make a declaration under s 92J of the Human Rights Act 1993 where an enactment is inconsistent with the right to freedom from discrimination.
The wording of a declaration may change depending on the circumstances in which it is made. In Taylor, the Court declared that the relevant section was inconsistent with NZBORA, “and cannot be justified under s 5 of that Act.”
In Make It 16 v Attorney-General, the Supreme Court declared that the voting age was inconsistent with the right of 16 and 17-year-olds to be free from discrimination, and that the inconsistencies “have not been justified in terms of s 5…” The use of the words “have not” rather than “cannot” reflected the Court’s acknowledgement that the voting age could potentially be justified, though such evidence had not been put before the Court.
What effect does a declaration have?
A declaration does not prevent a law from being enforceable, nor does it provide any direct remedy to the person or persons whose rights are being infringed. Instead, it provides an opportunity for the court or tribunal to publicly announce that a law infringes a fundamental human right in a way that cannot be justified in a free and democratic society. Parliament must then choose how to respond, considering any political repercussions they may receive for failing to adequately address the issue.
Taylor demonstrated that despite lacking a mechanism for enforceability, declarations can encourage legislative change. However, the results will not always be consistent. Following the declaration in Make it 16, the Government announced plans to introduce a bill to lower the voting age. In March 2023 the Government stated the bill would be discontinued due to concerns it would not have the required support of 75% in Parliament.
While the courts cannot override legislation passed by Parliament, the latter remains subject to the court of public opinion. Declarations of inconsistency help to ensure legislation is considered in a manner which is open and transparent, and that Parliament does not escape its duty as a responsible lawmaker.
For further information please contact Director, Brigitte Morten.
