In Attorney-General v Taylor [2017] NZCA 215, the Court of Appeal held unanimously that the courts have a general jurisdiction to make declarations of inconsistency (“Declarations“) in relation to the New Zealand Bill of Rights Act 1990 (NZBORA).
Declarations are formal statements, separate from the reasoning of a judgment, and have the status of a legal remedy, albeit hortatory (non-binding). Accordingly, they are also distinct from mere indications, within a court’s reasoning, that legislation limits a right guaranteed by NZBORA in a way that cannot be justified in a free and democratic society.
They are also clearly distinct from a power to “strike down” legislation or declare it invalid. Unlike the US Supreme Court, no NZ court has that power.
The Court of Appeal found that Declarations were within the courts’ jurisdiction as part of the collaborative dialogue between branches of government. Rather than usurping Parliament’s supremacy over legislative decisions, Declarations formalise the courts’ view of inconsistencies.
In the context of the case before it, this led the Court of Appeal to uphold a Declaration that a legislative provision, which removed prisoners’ right to vote entirely, was inconsistent with the general right to vote guaranteed in NZBORA, and could not be justified in a free and democratic society.