Declarations that an Enactment Inconsistent with Bill of Rights

Tuesday 11 October, 2022

After languishing for the last couple of years the Government sponsored New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill (the Bill) has passed into law. In a rare display of cooperation, the Privileges Committee recommended unanimously that it be passed with all amendments agreed.

Issues under the New Zealand Bill of Rights Act 1990 (BORA) are increasingly raised in court proceedings to resist the enforcement of legislative requirements and penalties, focusing attention on the application of that Act. You may be aware that section 7 of BORA states that where any Bill is introduced into the House of Representatives, the Attorney-General must bring to the attention of the House any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in the BORA.

The Bill extends this provision by requiring any declaration of inconsistency with the BORA made by a senior court (Supreme Court, Court of Appeal, or High Court) to be notified to Parliament. Further, it requires the Minister responsible for the administering the Act in question to present a report to the House advising of the Government’s response to the declaration.

The Bill also amends the Human Rights Act 1993 in a consistent manner. Section92J of that Act says that if, in proceedings before it, the Human Rights Review Tribunal finds that an enactment is in breach of Part 1A (Discrimination by Government, related persons and bodies, or persons or bodies acting with legal authority), the Tribunal may grant a declaration that the enactment that is the subject of the finding is inconsistent with the right to freedom from discrimination affirmed by section 19 of the BORA.

New sections 92WA and 92WB of the Human Rights Act will require the Attorney-General to report any such declaration to the House of Representatives and impose a duty on the Minister responsible for the relevant Act to report the Government’s response to the declaration back to the House.

The Privileges Committee has also recommended new Parliamentary Rules for dealing with declarations of inconsistency, which would see them automatically referred to a select committee for consideration in parallel with the Minister’s timeframe for reporting the Government’s response.

It will be interesting to see if these new provisions spark more intensive litigation in this field in an effort to force or at least press for legislative change.

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