The declaration of inconsistency with the New Zealand Bill of Rights Act 1990

Abstract

Section 2(4) of the Criminal Justice Amendment Act (No 2) 1999 is incompatible with the cardinal tenets of a liberal democracy. This Court would be compromising its judicial function if it did not alert Parliament in the strongest possible manner to the constitutional privation of this provision.

The arrival of the declaration of inconsistency in Moonen v Film and Literature Board of Review was quite remarkable. There was nothing in the legislative history nor the terms of the New Zealand Bill of Rights Act 1990 (NZBORA) that explicitly furnished the courts with the jurisdiction to declare that certain statutory limitations of rights are inconsistent with the Act. Concerns were immediately raised about the feasibility and constitutional propriety of the new remedy. The Court of Appeal's traditionally liberal approach to the NZBORA appeared to have led it into error. It will be argued in this paper, however, that the declaration is both a legitimate and practical development. The new remedy promises to augment the democratic processes protecting human rights, facilitate transnational and domestic institutional dialogues on the nature of such rights, and promote a climate of rights-based justification and accountability for state action. Chapter 1 inquires into the significance of the declaration. The nature of the declaration is outlined, and its current legal status considered. The impact of the declaration is then briefly traversed in terms of its implications for the law of remedies, the NZBORA, the constitution, and New Zealand jurisprudence. Chapter 2 then questions whether the declaration is truly a surprising development. In this regard, the legal pedigree of the declaration, the context of expanding NZBORA remedies and the UK statutory analogue are all discussed. Chapter 3 begins the analysis of the legitimacy of the declaration. The inquiry first assesses the fit between the declaration and the broader NZBORA framework. The constitutional relationship between Parliament and the courts then provides a major yardstick in this legitimacy analysis. Democratic objections to the declaration and the possible benefits of a new constitutional order are discussed. Finally, the ramifications of the declaration for the international human rights system are assessed. Chapter 4 concludes the paper by considering the methodology of declaration decision-making. It looks to Canada for guidance in appraising the legitimacy and competency of such decisions, and discerns lessons regarding the employment of appropriate legal and procedural methods in this regard. The final procedural issue discussed is the question of standing. The two dominant standing standards are thus evaluated against the requirements of declaration decisionmaking and the nature of the declaration itself.