The Supreme Court has confirmed that the High Court has jurisdiction to declare legislation inconsistent with the New Zealand Bill of Rights Act 1990.
In Attorney-General v Taylor  NZSC 104, a majority of the Supreme Court (Elias CJ, Glazebrook and Ellen France JJ) supported the High Court’s finding that senior courts in New Zealand can declare legislation inconsistent with NZBORA.
The Attorney-General had appealed against the conclusion that jurisdiction existed.
The result, though not unexpected, was somewhat closer than might have been anticipated, with two judges (William Young and O’Regan JJ) dissenting: the first two judges to take the opposing view as Taylor has progressed through the courts.
As explained in an earlier Brief Counsel, the Government plans to legislate to formalise a power to make declarations of inconsistency in NZBORA. Despite the Supreme Court’s decision, such legislation will still serve a useful purpose by establishing a process by which Parliament can respond to the declaration.
Background to the decision
In 2010, the Electoral Act 1993 was amended to extend to all prisoners a prohibition on voting which had previously applied only to those serving sentences of more than three years.
The Attorney-General accepted that the amendment was inconsistent with the right to vote protected by NZBORA,1 but argued that the High Court did not have jurisdiction to issue a declaration to that effect.
The story through the courts
In the High Court, Heath J granted the declaration on the basis that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”.2
The Court of Appeal largely agreed with Heath J, but held that Mr Taylor himself had no standing, as the amendment being challenged concerned the rights of prisoners imprisoned for less than three years and Mr Taylor is serving a considerably longer sentence.
The Supreme Court
― The majority
Glazebrook and Ellen France JJ grounded the jurisdiction to make a declaration in NZBORA itself. In reaching this view, they focused on the importance of the courts providing an effective remedy for a breach of NZBORA. There was nothing in the scheme of NZBORA that would prevent a court making a declaration, and to do so was consistent with the courts’ usual function.
The Court explored the case law to date, finding support from Cooke P in Baigent’s Case for the principle that “the absence in the Bill of Rights of an express provision about remedies was ‘probably not of much consequence’”.3 The majority also considered that making such a declaration was important in “marking and upholding the value and importance of the right”.4
The Chief Justice gave a separate judgment, agreeing in principle with the majority, but adding some points of her own, including that the Courts had an inherent jurisdiction, outside NZBORA, to grant declarations of right.
The Chief Justice also criticised the “over-ambitious” argument of the Attorney-General that because legislation had been validly passed altering rights, a declaration of those prior rights would be of no effect. She noted that the NZBORA “occupies a position properly described as ‘constitutional’” and that the principle of legality requires that Parliament must “speak unmistakeably when limiting fundamental rights recognised by the common law”.5
All of the majority allowed Mr Taylor’s cross-appeal, confirming he had standing to seek the declaration.
― The dissent
A dissenting judgment was given by William Young and O’Regan JJ, concluding that in the absence of an express power conferred by NZBORA, there was no jurisdiction to grant the declaration of inconsistency sought.
While the minority agreed that effective remedies should be available for NZBORA and that such a declaration was not inconsistent with the judicial function, they concluded that a declaration of inconsistency was not a “remedy” for a NZBORA breach, and was of no legal consequence.
Their concern was that, in the absence of legislative provisions requiring a response from Parliament “a declaration would simply hang in the air and possibly create some sort of moral obligation on the part of the legislature to reconsider”. The risk inherent in this was that the declaration could simply be ignored, resulting in “erosion of respect for the integrity of the law and the institutional standing of the judiciary”.6
Chapman Tripp comment
― The courts’ role
The decision confirms the courts’ role in recognising and vindicating rights through declarations. A similar approach was apparent in the Supreme Court’s decision in Ngāti Whātua Ōrākei v Attorney-General & Ors  NZSC 84, decided earlier this year (see our Brief Counsel), in which the majority also emphasised that it is a function of the courts to make declarations as to rights.
In that context, and bearing in mind the Court of Appeal and High Court decisions, the result here is perhaps unsurprising. What is less clear is when the courts will exercise the discretion to grant the remedy. In this case, the Attorney-General accepted, and the courts agreed, that there had been an unambiguous breach of a provision of the NZBORA; so the question was purely one of jurisdiction. The minority decision, even though not carrying the day in this case, may yet weigh against the discretion to issue a declaration in more contentious cases.7
Another interesting aspect is the extent to which the power to declare legislation inconsistent with fundamental rights will be used with respect to rights (such as the right to privacy) arising outside of the NZBORA which, after all, is not an exhaustive codification.8
― And Parliament’s response
Unlike many other jurisdictions, New Zealand does not have a formal process in place that dictates exactly how a declaration of inconsistency will be responded to. The dissent’s view that, in this absence, a declaration may simply “hang in the air” has, to some extent, been borne out by the Government’s response to the decision.
Justice Minister Andrew Little has told media that, while the Government has yet to take a position, the issue of prisoner voting is “not that much of a priority”, and is unlikely to be considered for at least a year.9
However, as already noted, the Government is proposing to formally confirm in NZBORA the ability of the senior courts to make declarations of inconsistency and to set out the process to be followed by Parliament once a declaration has been made.
The form of that process is yet to be determined, but it will likely require Parliament to take specific steps to consider and respond to the declaration while maintaining Parliamentary sovereignty by allowing Parliament to choose to take no action.
Thank you to Marcel Lister and Rose Goss for preparing this Brief Counsel. For more information please contact the authors listed.