Protection of human rights under the New Zealand Bill of Rights Act 1990 and other constitutional issues.

Government intends to seek to amend the Bill of Rights Act to provide senior courts with the power to make declarations of inconsistency. We hope to have the policy work on that completed this year and an amendment introduced to the House in early 2019

typical of the Westminster model of Government

They have evolved and worked well for 160 years to give us one of the best and most successful democracies in the world, and a record of stability and respect for human rights is matched by few other countries.

initially proposed in 1985 would have been different – it would have allowed judicial review of statutes by the courts and “striking down” as invalid those that were determined to be inconsistent with protected rights and freedoms, as we see in countries with supreme law constitutions like the United States of America

The “only” in s 4 is important. It alludes to the possibility that a court might rule an enactment invalid or ineffective for some reason other than inconsistency with the Bill of Rights Act.

Parliament in a modern New Zealand does not have sovereignty to legislate to end elections though it can change some aspects of voting rights

Against this backdrop we are considering judicial declarations of inconsistency – which doesn’t go as far as striking down the legislation but expresses the court’s opinion that Parliament’s law is not consistent with the Bill of Rights

A declaration of inconsistency is a formal order, granted by the Court, stating that the Court has determined legislation to be inconsistent with a fundamental right or freedom protected by the Bill of Rights Act.. Unlike in countries with a supreme law constitution, a declaration does not affect the validity of the legislation or anything lawfully done under it. So the litigation doesn’t provide the relief that we would typically expect a Court to give – the plaintiff would be in the same position except he or she is now armed with the Court’s opinion.

2015 the High Court issued a declaration of inconsistency for the first time, declaring that the prisoner disqualification provisions of the Electoral Act 1993 were inconsistent with the right to vote

Courts are directed, by section 6, to interpret legislation consistently with rights “wherever possible”, but where that is not possible, they must apply the law despite any inconsistency

A legislative mandate for the Courts to make declarations of inconsistency and allow formal parliamentary processes to be placed around it to make it meaningful.

Parliament will be careful to preserve its sovereignty. The Privileges Committee, which I chair, will consider what mechanism to use to facilitate a response from Parliament to any judicial declaration of inconsistency. The exact form this will take is still under consideration – but it is likely to involve the court’s declaration being reported to the House, and a procedure for Members and the Government of the day to reappraise the legislation at issue.

At that point Parliament, informed by the opinion of the court, after the politics, can amend, repeal or maintain the law as it was originally passed

in the interim this Government decided, in principle, that the Bill of Rights should be amended to expressly authorise judges to make declarations of inconsistency. We think Parliament should provide for such a power.

Such an amendment would reinforce the point that Parliament is responsible for having the final say on what constitutes a justified limitation on fundamental rights and freedoms. And if we get it wrong, voters can replace us.

Giving the courts the power to make a declaration could help facilitate this healthy, democratic dialogue, and become an important part of our constitution working as it should

To have the branches of Government talking to each other on these issues, bringing issues back onto Parliament’s agenda, is the sort of dialogue which exemplifies our system working as it should - to protect human rights whilst retaining Parliamentary sovereignty

https://www.beehive.govt.nz/speech/protection-human-rights-under-new-zealand-bill-rights-act-1990-and-other-constitutional

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