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]
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]
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.
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]
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]
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]