Parliament, the Courts and the NZBORA: The Cases of Aid in Dying and Prisoner Voting

Abstract

The New Zealand Bill of Rights Act 1990 (NZBORA) retains Parliament’s sovereign power to make law. However, beyond that important point, much of the debate around the NZBORA’s meaning for the legislature and judiciary’s intertwined roles was left unresolved.This paper considers the judiciary’s power to register concern, by making a declaration of inconsistency, over law that may contradict the NZBORA. The paper first briefly sets out the background history to the issue of declarations of inconsistency with the NZBORA in New Zealand. It then critically examines the courts’ rulings in the two cases, Seales v Attorney-General and Taylor v Attorney-General. The concluding section advances some thoughts on why the cases resulted in different outcomes, primarily focusing on the nature of the issue involved and the judiciary’s assessment of how well Parliament has dealt, and may yet deal, with it.