By Anuja Mitra

In New Zealand, Parliament is supreme. Technically, this means that it can pass even the most rights-abridging legislation without backlash — or can it? The decision this year of Attorney-General v Taylor confirmed that where a court finds that an Act of Parliament contravenes a fundamental right in the New Zealand Bill of Rights Act 1990 (NZBORA), they are empowered to issue a formal declaration of inconsistency. The case was widely praised, with the Human Rights Commission considering it constitutionally significant.

So what is a declaration of inconsistency, what was Attorney-General v Taylor about and how is it important?

Background

Courts in New Zealand cannot strike down any statute, even if it is at odds with rights in the NZBORA. However, there has been judicial discussion surrounding whether a declaration of inconsistency (DOI) can be issued. A DOI is “a formal remedy and solemn declaration informing all New Zealanders that Parliament has enacted legislation incompatible with a fundamental right.” This declaration does not nullify the legislation which it concerns. Instead, the court relies on the expectation that Parliament will re-examine its motivations for passing that legislation, in light of a proclamation that it is in conflict with a democratic freedom.

In 2015, the High Court issued a DOI for the first time. Taylor v Attorney-General concerned the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which banned all serving prisoners from voting regardless of the length of their sentence. Ruling in favour of the prisoners, the High Court made a formal declaration stating that this amendment breached the right to vote under s 12(a) of the NZBORA. The judge was unwavering in his belief that a DOI was the correct remedy: “If a declaration were not made in this case”, Justice Heath said, “it is difficult to conceive of one in which it would.”

Attorney-General v Taylor: The 2017 Appeal

Following the High Court’s ruling, the government — represented by the Attorney-General — appealed to the Court of Appeal, arguing that the High Court had no power to make a declaration. The Court of Appeal decided unanimously that there was jurisdiction for higher courts to make declarations of inconsistency. They found that:

(1) The power to make a DOI is supported by previous case law. In Quilter v Attorney-General, Justice Thomas considered that it would be “a serious error” for Courts to shy away from making proclamations that rights have been breached by Parliament. In Moonen v Film and Literature Board of Review, it was suggested that courts not only have the power but sometimes the duty to make a DOI.

(2) Since the Human Rights Tribunal can make declarations, the courts must share this power. Where it has been established that an enactment is in conflict with the right to freedom from discrimination, the Human Rights Tribunal can grant a declaration announcing this. Tribunals are inferior to courts, and if Parliament vested the authority to make declarations in a tribunal, it is logical that this power extends to the High Court.

(3) Ability to issue a DOI fulfils New Zealand’s international obligations. New Zealand is a party to the International Covenant on Civil and Political Rights. Under art (3), nations must endeavour to provide effective remedies for rights violations and “develop the possibilities of judicial remedy”. A DOI would reflect New Zealand’s commitment to human rights.

(4) The NZBORA impliedly supports a DOI. Though the Act does not expressly mention declarations of inconsistency, the Court of Appeal concluded that the language and purpose of ss 2-6 suggest that one may be granted.

(5) Most importantly, the power to issue a DOI does not abridge the constitution or trespass on the role of Parliament. This was the core of the Attorney-General’s argument, and it was rejected by the Court of Appeal. They found that the common law function of the courts is to answer questions of law, which includes addressing the question of whether legislation is in conflict with the NZBORA.

Significance of the Decision

The power to make a declaration of inconsistency affirms the courts as upholders of rights, standing between ordinary citizens and the might of Parliament.

Attorney-General v Taylor was not the first case to discuss whether New Zealand courts can make declarations of inconsistency, but it purported to settle the matter once and for all. So what difference does this make? The power to issue a DOI does not render the New Zealand Bill of Rights Act any more powerful, or make Parliamentary supremacy weaker. Further, a DOI is only a discretionary remedy, and the courts will exercise this power with restraint — meaning that we might not see another declaration any time soon. It can be argued that Attorney-General v Taylor constitutes a change in theory more than in reality.

However, the case is important in what it says about the role of the judiciary. The power to make a DOI affirms the courts as upholders of rights, standing between ordinary citizens and the might of Parliament. A declaration is a noteworthy way of vindicating plaintiffs who otherwise would not be entitled to any remedy for the breach of their rights. Overall, it is a powerful check on Parliamentary sovereignty. Declarations of inconsistency function as “a formal black mark on Parliament’s report card”, reminding them of their accountability to other government branches—and their responsibility to the people.

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