Greater protections under Bill of Rights

Cabinet today approved of greater protections under the New Zealand Bill of Rights:


Government to provide greater protection of rights under the NZ Bill of Rights Act 1990

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.

Background information

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.

9 Comments

  1. PartisanZ

     /  February 26, 2018

    There are computer programs available that can identify aspects of proposed Law which are inconsistent with a Treaty like Te Tiriti o Waitangi, an International Covenant, a codified or unwritten Constitution, the Bill of Rights Act, or any other Act or Acts BEFORE the Law is passed …

    “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” …. Sounds like more ‘Clayton’s Legislation’ to me … like cannabis law reform …

    Sure, the provision for legal action must exist, but to make Declarations of Inconsistency dependent on ‘The Higher Courts’ and the grossly highly overpaid senior legal profession may, in itself – or perhaps should – be in breach of the Bill of Rights Act?

  2. Ray

     /  February 27, 2018

    Like PartisanZ I think this is a patch that isn’t needed and if you read it can (rightfully) be ignored by Parliament who are the elected representatives of the people etc.

    It just gives the unelected Judicial the right to say “careful, careful Will Rogers” but who can then be ignored, so other than yet another sop to Geoffrey Palmer and the written constitution supporters why do we need this?

    • PartisanZ

       /  February 27, 2018

      We need a written Constitution with provisions built-in to identify such ‘Inconsistencies’ BEFORE legislation is passed, if humanly and electronically possible.

      I would bet there’s a direct relationship between the amount of lobbyist and ‘Think Tank’ interference in law-making and the number of inconsistencies? This doorway needs to be shut, locked and barred.

      But if we don’t have Judicial protections as well, our Constitution will be missing an all-important ‘check and balance’ …

      Judicial Declarations should be EXTREMELY RARE. If they happen more than very, very occasionally, the Declarations of Inconsistency should pertain to either lazy law-making – or worse ‘corrupt’ law-making – or to overuse of Declarations of Inconsistency … hence Constitutional amendment …

      • PartisanZ

         /  February 27, 2018

        Interesting that there appears to be an anti-Bill-of-Rights, anti-Constitution brigade …?

        What’s that about?

        Is there a perceived link between personal sovereignty and Maori sovereignty? Between Constitutionality and Republicanism?

        Can anyone enlighten me as to why people would NOT want to have their individual human rights protected and their government comprehensibly constituted?

        Just asking …

  3. Trevors_elbow

     /  February 27, 2018

    Parker says no eay to address problems….. ummmm its Parliament they can pass an amendment or carve out a special ecemption from the BOR if absolutely necessary.

    Smells like another sop to unelected, elitist Judges with an agenda to interfere in political life. They already manipulate parliaments intent .. see the 3 strikes legislation…

    Who holds appeal and supreme court judges to account? No one is the answer

    • PartisanZ

       /  February 27, 2018

      @Trevors_elbow – ” … unelected, elitist Judges with an agenda to interfere in political life. They already manipulate parliaments intent .. see the 3 strikes legislation …”

      It is true, I’ll admit, that most Judges are wise and compassionate.

  4. Alan Wilkinson

     /  February 27, 2018

    There is a valid purpose for constitutional protection of the individual from the majority as empowered by Parliament. If the Courts employ this provision for that purpose I support this change.

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