Declaration of inconsistency

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A declaration of inconsistency is a ruling by a senior New Zealand court that an Act of Parliament conflicts with the New Zealand Bill of Rights Act 1990 (NZBORA) in a way that cannot be justified in a free and democratic society.

NZBORA protects basic rights but allows limits that can be justified by law. Rights are not absolute.

The idea of a declaration appeared in 1992, with later cases (Temese v Police, Quilter v Attorney-General) suggesting it could be available in the right case but not making a formal declaration. In Moonen v Film and Literature Board of Review, a judge suggested courts should indicate when legislation is inconsistent, but it was unclear whether this meant a formal declaration. In R v Poumako, a formal declaration was deemed inappropriate, though one judge dissented. Zaoui v Attorney-General later recognised a jurisdiction for a formal declaration of inconsistency. In R v Hansen, the Court of Appeal showed courts could inquire into consistency, but the Supreme Court did not issue a formal declaration.

The first formal declaration came in July 2015, when High Court Justice Sally Taylor declared that an electoral law change removing prisoners’ voting rights was an unjustified limit on voting rights under NZBORA. The Attorney-General appealed, arguing there was no jurisdiction for a declaration unless authorized by statute. The Court of Appeal said inconsistency between statutes is a matter for the courts, and the appeal to the Supreme Court was dismissed, upholding the Court of Appeal’s view.

In August 2022, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 became law. It requires the Attorney-General to notify Parliament when a declaration is made and requires the responsible Minister to present a report to Parliament on how the government will respond.

On 21 November 2022, the Supreme Court issued a declaration of inconsistency in relation to the Electoral Act 1993 and Local Electoral Act 2001, finding that setting the voting age at 18 was unjustified discrimination under NZBORA. The Court also affirmed the jurisdiction established in Taylor v Attorney-General and noted the new amendment act.