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Bill allows declaration of inconsistency with NZBORA

18 March 2020

Justice Minister Andrew Little has introduced the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill to Parliament.

The objective of the bill is to help provide a mechanism for the Executive and House of Representatives to consider, and, if they think fit, respond to, a declaration of inconsistency made under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993.

The Human Rights Act 1993 empowers the Human Rights Review Tribunal to declare an Act to be inconsistent with the right to be free from discrimination affirmed in section 19 of the Bill of Rights Act.

Until recently, it has been less clear whether the courts can make declarations of inconsistency in respect of other rights affirmed in the Bill of Rights. This was settled in November 2018 when the Supreme Court, in Attorney-General v Taylor [2018] NZSC 104; [2019] 1 NZLR 213, determined that the senior courts have the power to issue a declaration of inconsistency under the Bill of Rights Act.

Before the Supreme Court decision in Taylor, Cabinet had agreed in principle to amend the NZBORA to provide for declarations of inconsistency made by the senior courts.

The bill which has been introduced requires the Attorney-General to present to the House a report on a declaration of inconsistency. It does not, however, prescribe the process the House of Representatives must embark on, as that is deemed to be a matter properly for Parliament. The bill also does not amend or alter the power of the senior courts to grant relief, including making declarations of inconsistency under the Bill of Rights Act.

Procedural requirements

The explanatory note to the bill says how, and when, the House of Representatives responds is for it to determine, and prescribe, by adoption of appropriate Standing Orders. It says the Minister of Justice will propose that the Standing Orders Committee consider potential changes to the Standing Orders.

Last updated on the 18th March 2020