IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI
SC 65/2017
[2018] NZSC 104
BETWEEN

ATTORNEY-GENERAL
Appellant

AND

ARTHUR WILLIAM TAYLOR
First Respondent
HINEMANU NGARONOA, SANDRA
WILDE, KIRSTY OLIVIA FENSOM AND
CLAIRE THRUPP
Second to Fifth Respondents

Hearing:

6 and 7 March 2018

Court:

Elias CJ, William Young, Glazebrook, O’Regan and
Ellen France JJ

Counsel:

U R Jagose QC, D J Perkins and G M Taylor for the Appellant
First Respondent in person
R K Francois for the Second to Fifth Respondents
A S Butler, C J Curran and J S Hancock for the Human Rights
Commission as Intervener

Judgment:

9 November 2018

JUDGMENT OF THE COURT
A

The appeal is dismissed.

B

The cross-appeal is allowed. Mr Taylor accordingly has
standing.

C
Costs are reserved.
____________________________________________________________________

ATTORNEY-GENERAL v ARTHUR WILLIAM TAYLOR [2018] NZSC 104 [9 November 2018]

 REASONS
Para No.
[1]
[73]
[122]

Glazebrook and Ellen France JJ
Elias CJ
William Young and O’Regan JJ
GLAZEBROOK AND ELLEN FRANCE JJ
(Given by Ellen France J)
Table of Contents
Introduction
Background
Prisoner voting
The approach in the Courts below
The statutory scheme
Does the High Court have power to make a declaration of
inconsistency?
The submissions
The approach to date
Is the making of a declaration contemplated by the Bill of Rights?
Consistency with judicial function?
Mr Taylor’s standing – the cross-appeal
The decision to grant a declaration in this case
Result

Para No.
[1]
[6]
[7]
[13]
[20]
[25]
[25]
[29]
[38]
[52]
[68]
[70]
[71]

Introduction
[1]

The primary issue raised by this appeal is whether the High Court has the

power to make a declaration that legislation is inconsistent with the provisions of the
New Zealand Bill of Rights Act 1990 (the Bill of Rights). The issue arises in the
context of an amendment in 2010 to the Electoral Act 1993.

The Electoral

(Disqualification of Sentenced Prisoners) Amendment Act 2010 (the 2010
Amendment) extended the prohibition on voting to all prisoners. Prior to the 2010
Amendment, the prohibition was confined to prisoners sentenced to a term of
imprisonment of three years or more.

 [2]

It is accepted that the prohibition in the 2010 Amendment is inconsistent with

the right to vote in s 12(a) of the Bill of Rights. Section 12 provides that:
Every New Zealand citizen who is of or over the age of 18 years—
(a)

[3]

has the right to vote in genuine periodic elections of members of the
House of Representatives, which elections shall be by equal suffrage
and by secret ballot; …

The respondents, five prisoners, sought a declaration in the High Court that the

2010 Amendment was inconsistent with s 12(a).1 An application to strike out the
proceeding on the ground there was no jurisdiction to make a declaration was
dismissed by Brown J.2 The matter proceeded to trial after which Heath J in the High
Court made a declaration that:3
Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral
(Disqualification of Sentenced Prisoners) Amendment Act 2010) is
inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the
New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that
Act.

[4]

The Attorney-General appealed to the Court of Appeal from this decision on

the ground the Court had no jurisdiction to make the declaration. The Court of Appeal
dismissed the appeal.4 The Court did so on the basis there was a power to make a
declaration and, with one qualification, considered it was not unreasonable to make a
declaration in this case. The qualification was that the Court ruled that the first
respondent, Mr Taylor, had no standing. That was because he was prevented from
voting by the earlier legislation, not by the 2010 Amendment.
[5]

The Attorney-General appeals with leave to this Court.5

Mr Taylor

cross-appeals on the standing issue. The Human Rights Commission was given leave
to appear as an intervener.

1

2
3
4

5

Mr Taylor and others have also brought proceedings challenging the validity of the 2010
Amendment on the basis it involved an amendment to an entrenched provision of the Electoral
Act 1993 without compliance with the requirement for a super-majority. This matter is the subject
of an appeal to this Court: Ngaronoa v Attorney-General [2017] NZSC 183. Judgment is reserved.
Taylor v Attorney-General [2014] NZHC 1630.
Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791 [Taylor (HC)] at [79].
Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 (Kós P, Randerson, Wild, French
and Miller JJ) [Taylor (CA)].
Attorney-General v Taylor [2017] NZSC 131.

 Background
[6]

Before discussing the approach taken in the Courts below, it is useful to say a

little about the history of disenfranchisement of prisoners in New Zealand.6 We
essentially adopt the description of this aspect in the judgment of Heath J.7
Prisoner voting
[7]

The first point of reference is the New Zealand Constitution Act 1852 (Imp)

(the 1852 Act).8 Under that Act, the franchise was restricted to males over 21 years of
age who owned property.9 Relevantly, for present purposes, s 8 of the 1852 Act
provided that prisoners incarcerated for “any treason, felony, or infamous offence,
within any part of Her Majesty’s dominions” were prohibited from voting. The
Qualification of Electors Act 1879 extended the prohibition for a period of 12 months
after the prisoner’s sentence was completed.10
[8]

The scope of the prohibition changed under the Electoral Act 1905.11

Section 29(1) of that Act removed the extension of the period of post-conviction
disqualification but the class of offences to which the prohibition applied was widened.
Prisoners sentenced to death or to a sentence of one or more years of imprisonment,
amongst others, were added to the class of disenfranchised prisoners.

6

7
8

9

10

11

Jaqueline Hodgson and Kent Roach “Disenfranchisement as Punishment: European Court of
Human Rights, UK and Canadian Responses to Prisoner Voting” [2017] PL 450 at 450 note that
“Whether or not prisoners should enjoy the right to vote is a controversial subject in many
democracies”.
Taylor (HC), above n 3, at [16]–[26].
At [18], citing New Zealand Constitution Act 1852 (Imp) 15 & 16 Vict c 72 [the 1852 Act]. Of
the provisions in the United Kingdom dealing with prisoner disenfranchisement, the European
Court of Human Rights noted they “reflected earlier rules of law relating to the forfeiture of certain
rights by a convicted ‘felon’ (the so-called ‘civic death’ of the times of King Edward III)”: Hirst v
United Kingdom (No 2) (2006) 42 EHRR 41 (Grand Chamber, ECHR) at [22] and see [53]. See
also Greg Robins “The Rights of Prisoners to Vote: A Review of Prisoner Disenfranchisement in
New Zealand” (2006) 4 NZJPIL 165 at 166–167; and Andrew Geddis “Prisoner Voting and Rights
Deliberation: How New Zealand’s Parliament Failed” [2011] NZ L Rev 443 at 445–447.
The 1852 Act, s 7. The franchise was extended to Māori men by s 6 of the Maori Representation
Act 1867.
Section 2(4). At that point, the franchise was extended to all adult men, including those without
property: ss 2(1) and 2(2).
By this time the franchise had extended to women via the Electoral Act 1893.

 The Electoral Act 1956 imposed a complete ban on voting on those detained

[9]

in a penal institution as a result of a conviction.12
The position changed for a brief period with the Electoral Amendment Act

[10]
1975.13

Section 18(2) of that Act removed the disenfranchisement of prisoners

completely. That position remained only until 1977 when the prohibition on serving
prisoners voting was re-introduced.14
[11]

The situation altered again with the enactment of the 1993 Act. As originally

enacted, s 80(1)(d) disqualified serving prisoners detained under a sentence of life
imprisonment, preventive detention, or a term of imprisonment of three years or
more.15 The 2010 Amendment extended the prohibition to all prisoners. Under the
current regime, only remand prisoners retain the right to vote. The Attorney-General,
in his report to the House of Representatives under s 7 of the Bill of Rights, said that
“the blanket disenfranchisement of prisoners appears to be inconsistent with s 12 of
the Bill of Rights Act and … it cannot be justified under s 5 of that Act”.16
[12]

Against this background the respondents, all serving prisoners, brought an

action in the High Court seeking a declaration of inconsistency.
The approach in the Courts below
[13]

In the High Court, after a review of the authorities, Heath J said the “general

principle” was that “where there has been a breach of the Bill of Rights there is a need
for a Court to fashion public law remedies to respond to the wrong inherent in any
breach of a fundamental right”.17 There was no reason for a different position in
12
13

14
15

16

17

Section 42(1)(b). Remand prisoners retained the right to vote.
The Electoral Amendment Act 1969 lowered the voting age to 20: s 2. The age was lowered again,
to 18: Electoral Amendment Act 1974, s 2.
Electoral Amendment Act 1977, s 5.
The Royal Commission on the Electoral System Report of the Royal Commission on the Electoral
System: Towards a Better Democracy (Government Printer, Wellington, December 1986) at [9.21]
and recommendation 42, recommended the prisoner voting prohibition be limited to prisoners
serving sentences of three years or more; and see Letter from J J McGrath (Solicitor-General) to
W A Moore (Secretary for Justice) entitled “Rights of Prisoners to Vote: Bill of Rights”
(17 November 1992) which also favoured a three-year threshold.
Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act
1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill (17 March 2010)
at [16].
Taylor (HC), above n 3, at [61].

 relation to the legislative branch. Heath J said that Parliament did not intend, in the
Bill of Rights, “to exclude the ability of the Court to make a declaration of
inconsistency”.18
[14]

The Judge considered that the ability, since the enactment of s 92J of the

Human Rights Act 1993, for the Human Rights Review Tribunal to make a declaration
of inconsistency supported that view.19 Finally, Heath J did not consider making a
declaration would bring into question parliamentary processes in a way contrary to
art 9 of the Bill of Rights 1688 (Imp).
[15]

Given the fundamental nature of the right involved, the right to vote, the Judge

determined it was appropriate to make a declaration in this case.
[16]

The overall conclusion of the Court of Appeal was that the source of the higher

courts’ jurisdiction to make a declaration of inconsistency was “the common law
jurisdiction of the higher courts to answer questions of law”.20 The Court took the
view that there was no constitutional bar to a court issuing a declaration of
inconsistency nor any bar under the Bill of Rights. Indeed, the language and purpose
of ss 2–6 of the Bill of Rights and the associated case law supported the existence of
the power as did the ability to make a declaration of inconsistency conferred on the
Human Rights Review Tribunal under the Human Rights Act.21
[17]

Turning to the particulars of the present case, although no question of

Mr Taylor’s standing was raised by the Crown, the Court of Appeal concluded he had
none.22 The Court did so on the basis the challenge was confined to the 2010
Amendment. Mr Taylor had no interest in that because, in contrast to the other
respondents, as a long-term prisoner he could not vote under the earlier legislation.
Nor did the Court consider Mr Taylor could be treated as a representative plaintiff.

18
19

20
21
22

At [61].
At [62]. Section 92J applies in the context of breaches of the right to be free from discrimination
affirmed by s 19 of the Bill of Rights.
Taylor (CA), above n 4, at [109].
At [108].
At [176]–[177].

 [18]

Finally, the Court determined that it was open to the High Court to make a

declaration in this case and noted that it was “right to do so”.23 The Court relied in
this respect on the need to “convey the Court’s firm opinion that the legislation needs
reconsidering and to vindicate the right”.24
[19]

For completeness, we add that the Court found there had been no breach of

parliamentary privilege in the use made by Heath J of the report from the
Attorney-General to the House of Representatives pursuant to s 7 of the Bill of
Rights.25 That aspect of the case is not in issue before us.
The statutory scheme
[20]

The key provisions of the Bill of Rights for present purposes are the long title,

ss 2–7, and s 12(a) which is set out above. The long title provides that the purpose of
the Bill of Rights is two-fold, namely:

[21]

(a)

to affirm, protect, and promote human rights and fundamental
freedoms in New Zealand; and

(b)

to affirm New Zealand’s commitment to the International Covenant
on Civil and Political Rights.

Section 2 confirms that the rights and freedoms in the Bill of Rights are

“affirmed”.
[22]

The application of the Bill of Rights is addressed in s 3. Section 3 states:
This Bill of Rights applies only to acts done—

23
24
25

(a)

by the legislative, executive, or judicial branches of the Government
of New Zealand; or

(b)

by any person or body in the performance of any public function,
power, or duty conferred or imposed on that person or body by or
pursuant to law.

At [186].
At [185].
At [146].

 [23]

The effect on other enactments is dealt with in s 4 which provides as follows:
4

Other enactments not affected
No court shall, in relation to any enactment (whether passed or made
before or after the commencement of this Bill of Rights),—
(a)

hold any provision of the enactment to be impliedly repealed
or revoked, or to be in any way invalid or ineffective; or

(b)

decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of
this Bill of Rights.

[24]

Section 5 states that, subject to s 4, the rights and freedoms in the Bill of Rights

“may be subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society”. Section 6 is a direction to
prefer a Bill of Rights consistent meaning whenever possible. Finally, s 7 provides for
the Attorney-General to draw to the attention of the House of Representatives any
provision in a Bill, on its introduction, which appears inconsistent with the Bill of
Rights.
Does the High Court have power to make a declaration of inconsistency?
The submissions
[25]

The submissions for the Attorney-General in support of the proposition that the

High Court does not have power to make a formal declaration focus on the language
of the Bill of Rights and on its legislative history and on the nature of the judicial
function.

In developing these submissions the argument is made, first, that in

preserving parliamentary sovereignty s 4 of the Bill of Rights contemplates
enactments the courts may consider are inconsistent with the rights and freedoms in
the Bill of Rights. It is accordingly not correct to treat that situation as a breach of the
Bill of Rights requiring remedy. Second, it is contended that the making of a
declaration is an advisory opinion and so outside of the judicial function.
[26]

The respondents support the judgments in the Courts below. Mr Taylor also

emphasises that there is no other remedy available for the respondents. Mr Francois
for the other respondents also submits that the arguments for the Attorney-General

 overstate the distinction between indications of inconsistency as part of the court’s
reasoning process and a formal declaration.
[27]

The Human Rights Commission submits that the making of a formal

declaration is part and parcel of the scheme and intent of the Bill of Rights. Further,
counsel argues the jurisdiction to make a declaration if viewed in the context of New
Zealand’s constitutional setting is consistent with judicial function.26
[28]

We address these submissions after first discussing briefly the position taken

in the key authorities prior to the present case.
The approach to date
[29]

From the outset, the authorities have made it clear that in order for the Bill of

Rights to be effective, the courts had to provide remedies for breaches of the Bill of
Rights. The following observation from one of the earlier Bill of Rights cases captures
the position that has been taken:27
A statement of fundamental human rights would be a hollow shell and the
enactment of a Bill of Rights an elaborate charade if remedies were not
available for breach. On the contrary the premise underlying the Act is that
the Courts will affirmatively protect those fundamental rights and freedoms
by recourse to appropriate remedies within their jurisdiction.

[30]

As foreshadowed by this excerpt, it is also well-established that in order to

ensure any remedy is an effective one, the courts can draw on the usual array of
remedies, of which declaratory relief is a part. Cooke P in Simpson v Attorney-General
(Baigent’s Case) stated:28
Subject to ss 4 and 5, the rights and freedoms in Part II have been affirmed as
part of the fabric of New Zealand law. The ordinary range of remedies will
be available for their enforcement and protection. Secondly, the long title
shows that, in affirming the rights and freedoms contained in the Bill of
Rights, the Act requires development of the law when necessary. Such a
26
27

28

Mr Taylor supported the Commission’s approach in his submissions.
R v Goodwin [1993] 2 NZLR 153 (CA) at 191 per Richardson J. See also: Geoffrey Palmer “A Bill
of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 [the White Paper] at
[3.8]–[3.12].
Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent] at 676. See also
Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [1]–[2] per Elias CJ and
[203] per McGrath and William Young JJ; and Taunoa v Attorney-General [2007] NZSC 70,
[2008] 1 NZLR 429 at [258] per Blanchard J and [300] per Tipping J.

 measure is not to be approached as if it did no more than preserve the status
quo.

[31]

There have been a number of cases in which a formal declaration of

inconsistency has been sought but, until the present case, no declaration has been
made.29 There is however no dispute that courts can conclude as part of the reasoning
process that legislation is inconsistent with the Bill of Rights. The classic illustration
of this is provided by this Court’s decision in R v Hansen which found that the reverse
onus presumption of supply in the Misuse of Drugs Act 1975, applying to those in
possession of controlled drugs above the specified amounts, was inconsistent with the
presumption of innocence in s 25(c) of the Bill of Rights and that this could not be
justified.30
[32]

In Hansen, McGrath J noted that the court should not “shirk its responsibility

to indicate” its view legislation is inconsistent with the Bill of Rights and that the need
in those situations to rely on s 4 normally will be “sufficiently apparent from the
Court’s statement of its reasoning”.31 And the Court of Appeal in Moonen v Film and
Literature Board of Review used the language of “indications” or “declarations”
interchangeably.32 In other cases the possibility of making a formal declaration has
been flagged.33
[33]

Boscawen v Attorney-General exemplifies the high point of the authority

against the availability of a power to make a formal declaration.34 That case dealt with
a challenge to the omission of the Attorney-General to report an apparent
inconsistency with the Bill of Rights to the House of Representatives under s 7 of the
Bill of Rights. The Court of Appeal outlined reasons which the Court considered told
against there being jurisdiction for the High Court “to make a declaration of
inconsistency in the abstract”.35
29

30
31
32
33

34
35

Those factors included the adoption of the

Heath J discusses some of the cases: Taylor (HC), above n 3, at [41]–[42] and [45]; and see the
discussion in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary
(2nd ed, LexisNexis, Wellington, 2015) at [28.6.1]–[28.7.12].
R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
At [253]. See also the comments at [254] and [259].
Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [19]–[20].
See, for example, R v Poumako [2000] 2 NZLR 695 (CA). In that case Thomas J (dissenting)
would have granted a declaration: at [70] and [106]–[107]. Henry J also expressly left open the
possibility of making a formal declaration: at [68].
Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229.
At [55] per O’Regan J for the Court.

 recommendation of the Attorney-General’s advisory group on the establishment of the
Supreme Court not to give the Court the power to give advisory opinions. The Court
also noted the courts are “not well placed to give opinions without a specific factual
background to assess the inconsistencies”.36 However, the Court made no final
decision on the point.37 Similarly, the Court left open the question of the availability
of a declaration of inconsistency in a disputed case.38
[34]

In other cases, for various reasons, the court has decided not to make a

declaration but has left the possibility of doing so open. For example, the possibility
of making a declaration was left open in R v Manawatu.39 The Court said that that
was not a case where a declaration would be made even if there was jurisdiction where
the Court’s position that the provision in the relevant legislation 40 should be repealed
had been accepted and legislation to implement repeal introduced.41
[35]

The Court of Appeal in Belcher v The Chief Executive of the Department of

Corrections declined to make a declaration of inconsistency in relation to the extended
supervision order regime.42 The Court considered it had no jurisdiction because it was
being asked to exercise an originating jurisdiction.43 The Court also concluded there
was no power to make a declaration of inconsistency in a criminal proceeding.44
[36]

In a similar vein, in R v Exley, the Court of Appeal said there was no

jurisdiction to make a declaration of inconsistency in the context of an appeal against
sentence.45

36
37
38
39
40
41

42
43
44

45

At [54].
At [55].
At [56].
R v Manawatu (2006) 23 CRNZ 833 (CA) at [13].
Crimes Act 1961, s 398 affecting the ability for dissenting judgments in criminal appeals.
See also the interlocutory decision in Taunoa v Attorney-General [2006] NZSC 95 where the Court
noted that there is no jurisdiction where the legislation in relation to which the declaration is sought
is not in force at the relevant time.
Belcher v The Chief Executive of the Department of Corrections [2007] NZCA 174.
At [12].
At [13]–[16]. Leave to appeal declined: Belcher v The Chief Executive of the Department of
Corrections [2007] NZSC 54.
R v Exley [2007] NZCA 393 at [21]. Leave to appeal declined: Exley v R [2007] NZSC 104.

 [37]

Finally, in McDonnell v Chief Executive of the Department of Corrections, the

Court of Appeal relevantly summarised the position after Belcher as follows:46
(a)

No decision has yet been made by the Supreme Court on whether
declarations of inconsistency are available in criminal proceedings.
However, this Court has indicated (in an obiter comment) that they
are not; a separate civil proceeding is required: …

(b)

The preferred approach to identifying inconsistencies is to do so in the
reasons for judgment, without issuing a formal declaration.

…
(d)

There is no jurisdictional bar to the Court of Appeal granting a
declaration of inconsistency where such a declaration was not first
sought in the High Court but was technically available.

Is the making of a declaration contemplated by the Bill of Rights?
[38]

Contrary to the submission of the Solicitor-General that the making of a

declaration does not fit with the language and legislative history of the Bill of Rights,
we see the making of a formal declaration as a logical step from the settled position
outlined above. That is, that an effective remedy should be available for a breach of
the Bill of Rights and the courts can draw upon the ordinary range of remedies to
provide such a remedy.
[39]

This approach is contemplated in Baigent in which the Court of Appeal found

that to enable an effective remedy, public law damages were available for a breach of
the Bill of Rights.47 Cooke P in Baigent considered the absence in the Bill of Rights
of an express provision about remedies was “probably not of much consequence”.48

46

47

48

McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009)
8 HRNZ 770 at [123].
Baigent, above n 28, at 677–678 per Cooke P, 691–692 per Casey J, 702–703 per Hardie Boys J,
706 and 713 per Gault J and 718 per McKay J. See also by way of example, R v Goodwin, above
n 27; and Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s case
and Harvey v Derrick (NZLC R37, 1997). See also the discussion on the courts’ function by John
Hart Ely “Toward a Representation-Reinforcing Mode of Judicial Review” (1978) 37 Md L Rev
451 at 471 and 485–486; and John Hart Ely Democracy and Distrust: A Theory of Judicial Review
(Harvard University Press, Cambridge (Mass), 1980). For a discussion of the way in which
judicial responses can be seen to de-escalate social tensions in a political context see
William N Eskridge Jr “Pluralism and Distrust: How Courts Can Support Democracy by Lowering
the Stakes of Politics” (2005) 114 Yale LJ 1279 at 1292–1312.
At 676.

 With reference to Baigent, the point was put in this way in Attorney-General v
Chapman:49
While it naturally followed that ordinary judicial remedies were available for
the enforcement and protection of rights, the strength of this expression of the
[Bill of Rights’] purpose required that the courts develop the current law
where necessary rather than simply preserve the status quo.

We now explain why we do not see this approach to the Bill of Rights as

[40]

inconsistent with the terms of the Bill of Rights and, indeed, we consider that it is a
means of meeting its stated objectives.
Taking the latter point first, the purposes include protecting the rights and

[41]

freedoms contained within it and, as well, affirming New Zealand’s commitment to
the International Covenant on Civil and Political Rights (the ICCPR).50 Under
art 2(3)(a) of the ICCPR the states parties to the Covenant undertake to ensure those
whose rights are violated “have an effective remedy”. 51 In a situation such as the
present, there is no other effective remedy.52 The importance of the rights suggests
that, unless granting such a remedy is inconsistent with the statutory language, the
courts should follow the usual approach and provide a remedy.
The Attorney-General seeks to distinguish Baigent (and other cases like

[42]

Chapman and Taunoa) which support the proposition that an effective remedy should
be provided on the basis those cases dealt with executive acts. This distinction may
be a reason for restraint in granting a declaration but, given the statutory scheme, there
is no apparent reason to erect a jurisdictional bar. Indeed, the desirability of providing
an effective remedy suggests that as a matter of policy the same principles should
apply.
[43]

The latter point finds support in the fact that the Bill of Rights expressly applies

to acts done by the legislative branch.53 It is possible to construe s 3 as clarifying the
49
50

51
52

53

Attorney-General v Chapman, above n 28, at [118] per McGrath and William Young JJ.
International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature
16 December 1966, entered into force 23 March 1976).
See also art 2(3)(b) and (c).
The same could be said of the example given by William Young and O’Regan JJ in their reasons
below at [143].
Section 3(a). See also Mark Elliott “Interpretative Bills of Rights and the Mystery of the Unwritten
Constitution” [2011] NZ L Rev 591 at 615–617.

 application of the measure rather than a more positive assertion. That is because of
the prefatory phrase, “applies only to”. That said, the fact there is an express
recognition that the Bill of Rights applies to the legislative branch is of importance in
the overall scheme.54
[44]

Next, s 4 makes it plain a court cannot hold a provision “to be impliedly

repealed or revoked, or to be in any way invalid or ineffective; or (b) decline to apply
any provision … by reason only that the provision is inconsistent” with the Bill of
Rights. That section means the courts cannot, for example, refuse to apply the voter
disqualification only because of inconsistency with the Bill of Rights. It says nothing
about the present issue.

As Professor Brookfield suggested, in his important

discussion of the availability of a declaration of inconsistency, the:55
… very precise wording of s 4 leaves it open – and indeed the Bill as a whole
arguably requires – that a Court should, at least in a case of serious
infringement … formally declare that inconsistency ... .

[45]

The argument was made by the Solicitor-General that Parliament does not

breach individual rights when it enacts inconsistent legislation because Parliament has,
in this way, changed the content of those rights. 56 Counsel also drew in aid s 92J of
the Human Rights Act. That section provides that where the Human Rights Review
Tribunal finds an enactment is “in breach” of Part 1A the only declaration the Tribunal
can make is that the enactment is “inconsistent” with the right to freedom from
discrimination.57
[46]

It is clear that the scheme of the Bill of Rights preserves Parliament’s ability to

legislate inconsistently with rights. But a formal declaration to the same effect is not
in conflict with that. Rather, in this sense, the Bill of Rights remains as the standard
or palimpsest albeit Parliament has exercised its power to legislate inconsistently with

54
55

56

57

Contrast Human Rights Act 1998 (UK), s 6(3) (acts of public authorities exclude Parliament).
F M Brookfield “Constitutional Law” [1992] NZ Recent Law Review 231 at 239. See also
Andrew S Butler “Judicial Indications of Inconsistency – A New Weapon in the Bill of Rights
Armoury?” [2000] NZ L Rev 43; and Paul Rishworth “Reflections on the Bill of Rights after
Quilter v Attorney-General” [1998] NZ L Rev 683.
Hence the submission was made that it is inapt to refer to the vindication of rights because the
legislature has acted lawfully in enacting the measure.
Section 92K(1)(a) of the Human Rights Act 1993 makes it clear that a declaration under s 92J does
not affect the validity of the enactment to which the declaration relates. See also New Zealand
Public Health and Disability Act 2000, s 70E(6) and (7).

 that standard. The fact that Parliament may have enacted legislation, concerning
which the Attorney-General has reported that the measure is not a justifiable limit on
a right, does not affect this analysis. The s 7 report and a formal declaration serve
different purposes albeit there may be debate about the effect of an adverse s 7 report
on the exercise of the discretion to grant relief.
[47]

Nothing turns on the choice of wording in s 92J of the Human Rights Act

emphasised by the Solicitor-General. Two points can be made. First, s 92J was
necessary to confer jurisdiction on the Human Rights Review Tribunal, as a statutory
body without inherent jurisdiction, the power to make a declaration. And second, we
agree with the Courts below that the s 92J jurisdiction provides some support for the
notion declarations of inconsistency are within judicial function.
[48]

It follows also that we do not consider this analysis is inconsistent with the

legislative history, namely, the enactment of the Bill of Rights as an ordinary statute
rather than, as initially proposed, supreme law.58
[49]

In terms of the legislative history, for the reasons given in Baigent nor do we

see that the absence of a remedies clause in the Bill of Rights alters the position.59 We
add that art 25 of the draft Bill attached to the White Paper would have provided for
persons whose rights had been “infringed or denied” to “apply … to obtain such
remedy as the court considers appropriate and just in the circumstances”.60 The White
Paper said that in most situations covered by the Bill of Rights the courts would be
able to “provide a remedy from their present armoury”.61 Hence, the White Paper set
out various remedies from that armoury including that:62
•

58

59

60
61
62

a person who wishes to take action forbidden by a statute claimed to be
in breach of the Bill can seek a declaration.

The impact of the legislative history and, in particular, the shift away from supreme law is
discussed by Claudia Geiringer “The Dead Hand of the Bill of Rights? Is the New Zealand Bill of
Rights Act 1990 a Substantive Legal Constraint on Parliament’s Power to Legislate?” (2007) 11
Otago LR 389 at 389–392; and see also Scott Stephenson From Dialogue to Disagreement in
Comparative Rights Constitutionalism (The Federation Press, Sydney, 2016) at 191–193.
Baigent, above n 28, at 676–677 per Cooke P, 691 per Casey J, 698–699 per Hardie Boys J, 707
per Gault J, and 718 per McKay J.
The White Paper, above n 27, at 114.
At [10.184].
At [10.184].

 For these reasons, we consider the text and purpose of the Bill of Rights overall

[50]

supports the court exercising its usual range of remedies of which a declaration is a
part.
[51]

The Attorney-General also placed some reliance on the absence of any of the

mechanics that would usually be associated with provision for the making of a
declaration such as ensuring notice is given to the Attorney-General and so on.63 We
agree that is the usual course in equivalent overseas legislation. But the absence of
the mechanics does not mean the absence of a power.
Consistency with judicial function?
[52]

The second of the Solicitor-General’s two principal submissions was that there

was no jurisdiction to make a declaration because the judicial function is adjudicatory.
Here, where there is no controversy over the interpretation of the 2010 Amendment
and no action can be taken in relation to the declaration, the submission is that the
High Court’s action is purely advisory. This submission is made in the context of the
statement by the Court of Appeal that a declaration of inconsistency:64
… is not a declaration of right. It determines no legal rights and conveys no
legal consequences as between the parties.

[53]

But a declaration that s 80(1)(d) is inconsistent with the Bill of Rights is a

formal declaration of the law and, in particular, of the effect of the 2010 Amendment
on the respondents’ rights and status. It provides formal confirmation they are persons
who are disqualified to vote by a provision inconsistent with their rights. Further, the
courts may make a declaration under the Declaratory Judgments Act 1908 even when
there is no lis.65 Finally, the making of such a declaration is consistent with the usual
function of the courts.

63

64
65

Comparable statutes make provision for example for the Attorney-General to present the
declaration to Parliament and prepare a response to it within given time-frames: Human Rights
Act 2004 (ACT), s 33; and Charter of Human Rights and Responsibilities Act 2006 (Vic), s 37.
There are also powers for the Minister to take remedial action: Human Rights Act 1998 (UK),
s 10; and provision for the possibility of paying compensation: European Convention on Human
Rights Act 2003 (Republic of Ireland), s 5.
Taylor (CA), above n 4, at [66].
Mandic v Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at [5]–[9] per
Elias CJ and [82] per Blanchard, Tipping, McGrath and William Young JJ.

 [54]

There is some support for the latter proposition in the decisions of the Supreme

Court of Canada in Manitoba Metis Federation Inc v Canada (Attorney-General)66
and in Canada (Prime Minister) v Khadr67 both of which are referred to in the more
recent decision of Mikisew Cree First Nation v Canada (Governor General in
Council).68 A majority of the Court in the latter case indicated declaratory relief may
be available post-enactment to provide a remedy in the context of a challenge to
legislation on the basis it is inconsistent with s 35 of the Constitution Act 1982, which
recognises and affirms aboriginal and treaty rights.69 In discussing the relief available
post-enactment of legislation, Karakatsanis J noted that a declaration was available
without a cause of action.70
[55]

Nor is the declaration without consequence. It would have some implications

in the context of a complaint under the Optional Protocol to the ICCPR.71 Tipping J
delivering the judgment of the Court of Appeal in Moonen noted that a “judicial
indication” of inconsistency “will be of value should the matter come to be examined
by the Human Rights Committee”.72 And, the Court of Appeal suggested, “It may also
be of assistance to Parliament if the subject arises in that forum.”73
[56]

The making of a formal declaration is also another means of vindicating the

right in the sense of marking and upholding the value and importance of the right.74
Accordingly, while Cooke P in Temese v Police indicated that a statement by the court

66

67
68
69

70

71

72

73
74

Manitoba Metis Federation Inc v Canada (Attorney-General) 2013 SCC 14, [2013] 1 SCR 623 at
[143] per McLachlin CJ and Karakatsanis J (on behalf of McLachlin CJ, LeBel, Fish, Abella,
Cromwell and Karakatsanis JJ).
Canada (Prime Minister) v Khadr 2010 SCC 3, [2010] 1 SCR 44 at [2], and see also [46]–[47].
Mikisew Cree First Nation v Canada (Governor General in Council) 2018 SCC 40.
At [47] per Karakatsanis J (delivering the reasons of Wagner CJ, Karakatsanis and Gascon JJ),
citing Manitoba Metis, above n 66, at [69] and [143]. See also [63]–[64] per Abella J (delivering
the reasons of Abella and Martin JJ), [145] per Brown J and [167] per Rowe J (delivering the
reasons of Moldaver, Côté and Rowe JJ).
At [47]. Abella J also observed that declarations are available regardless of whether consequential
relief is available at [97], citing Canada (Prime Minister) v Khadr, above n 67, at [46]–[47].
Optional Protocol to the International Covenant on Civil and Political Rights 999 UNTS 171
(opened for signature 16 December 1966, entered into force 23 March 1976).
Moonen, above n 32, at [20]. This was in the context of whether there was utility in the Court
considering whether or not a provision was inconsistent with s 5 of the Bill of Rights albeit the
effect of s 4 was that the Court would have to apply the provision.
At [20].
Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 at [83]–[84]. See also Taunoa,
above n 28, at [107] per Elias CJ, [300] per Tipping J and [368] per McGrath J;
Manga v Attorney-General [2000] 2 NZLR 65 (HC) at [126]; and Golder v United Kingdom
(1975) 1 EHRR 524 (ECHR) at 541.

 of inconsistency “could be seen by some to be gratuitously criticising Parliament by
intruding an advisory opinion”, Cooke P also suggested that, “possibly that price ought
to be paid”.75
[57]

As to other implications, the Court of Appeal did not attach any weight to the

implications in terms of costs. That was because an indication of inconsistency in the
reasoning (as in Hansen) could be relevant to the discretion to award costs.76 We,
similarly, do not see the costs implications as significant.
[58]

Finally, the Crown’s argument relied on the fact there was no dispute that the

2010 Amendment was inconsistent with the Bill of Rights (and was not a justified limit
on the right to vote). But that is not always going to be the position. Other cases may
not be so clear cut. In those cases the making of a declaration can have some effect in
the sense of clarifying a disputed point of interpretation. Further, where a formal
declaration has been made, that may provide some protection against any attempt to
re-litigate the question of consistency with the Bill of Rights. Arguably, the greater
formality means a declaration is more effective than an indication of inconsistency in
this sense. In any event, matters such as the utility of relief may be relevant to the
discretion to grant relief.
[59]

The Attorney-General relies also in this context on Momcilovic v R77 and on

A v Secretary of State for the Home Department.78 Momcilovic involved a set of facts
analogous to Hansen79 in that it related to the application of a reverse onus in a drug
case. A v Secretary of State dealt with the validity of a declaration the Special
Immigration Appeals Commission had granted. The declaration was to the effect that
legislation declaring a state of public emergency was inconsistent with
anti-discrimination provisions in the Convention for the Protection of Human Rights
and Fundamental Freedoms.80

75
76
77
78
79
80

Temese v Police (1992) 9 CRNZ 425 (CA) at 427.
Taylor (CA), above n 4, at [161].
Momcilovic v R [2011] HCA 34, (2011) 245 CLR 1.
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.
Above n 30.
Convention for the Protection of Human Rights and Fundamental Freedoms ETS 5 (opened for
signature 4 November 1950, entered into force 3 September 1953), arts 14 and 15. This
Convention is included in sch 1 to the Human Rights Act 1998 (UK).

 [60]

Momcilovic was decided on grounds not relevant here but the Court considered

a number of issues relating to the Charter of Human Rights and Responsibilities Act
2006 (Vic) (the Charter). The Charter contains provisions equating to ss 5 and 6 of
the New Zealand Bill of Rights.81 Section 36 of the Charter empowered the Supreme
Court to make declarations of inconsistent interpretation. Section 36(5) makes it clear
that a declaration does not affect “the validity, operation or enforcement” of the
provision to which the declaration relates or create “any legal right or give rise to any
civil cause of action”.
[61]

The Attorney-General points to the findings in Momcilovic that making a

declaration of inconsistency under s 36 was not within the judicial function conferred
by Ch III of the Commonwealth of Australia Constitution Act 1900 (UK) (the
Constitution).82
[62]

We consider the approach to this aspect in Momcilovic has to be assessed

against the particular Australian constitutional law setting. Only “a court referred to
in s 71” of the Constitution can exercise Commonwealth judicial power and such a
court “cannot exercise non-judicial power, or a power that is not incidental to a judicial
power”.83 Importantly for present purposes the Constitution is, as Professor Michael
Taggart said, generally treated “as establishing a firm separation of powers between
the three branches of government, much stricter than in the [United States of America]
or Canada”.84 It is construed as “especially rigid in separating and protecting judicial
power”.85 It is in the context of, essentially, ensuring the maintenance of the separation

81

82

83

84

85

Section 7 of the Charter is the equivalent to s 5 of the Bill of Rights and s 32 is the equivalent of
s 6.
See at [80] and [89] per French CJ. Bell J agreed with French CJ’s reasons for the conclusion
there was no exercise of a judicial function: at [661]. See also Gummow J at [178] and [184].
Hayne J agreed with Gummow J on this point: at [280]. Similarly, Heydon J said the power was
not judicial but “merely advisory”: at [457]. Crennan and Kiefel JJ said the making of a
declaration was not an exercise of a judicial power but found it was incidental to judicial power:
at [584] and [600].
Will Bateman and James Stellios “Chapter III of the Constitution, Federal Jurisdiction and
Dialogue Charters of Human Rights” (2012) 36 MULR 1 at 7, discussing R v Kirby; Ex parte
Boilermakers’ Society of Australia (1956) 94 CLR 254.
Michael Taggart “‘Australian Exceptionalism’ in Judicial Review” (2008) 36 FL Rev 1 at 4. See
also Scott Stephenson “Rights Protection in Australia” in Cheryl Saunders and Adrienne Stone
(eds) The Oxford Handbook of the Australian Constitution (OUP, Oxford, 2018) 905 at 922.
At 5.

 of powers that the High Court of Australia considered s 36 of the Charter in
Momcilovic.
[63]

The observations in Momcilovic should be seen in light of this feature of the

way the Constitution is interpreted. But, in any event, as we have said, we consider
making a declaration which confirms rights and status is a part of the judicial function
in the New Zealand context.86 A further distinguishing feature in terms of the
New Zealand position is s 3 of the Bill of Rights which has no equivalent in the
Charter.
[64]

Nor do we see A v Secretary of State as supporting the argument the making of

a declaration of inconsistency is outside of judicial function. Indeed, the case overall
provides support for the approach we take in that it confirmed the court had a role in
scrutinising the proportionality of measures taken in derogation of obligations under
the European Convention on Human Rights. That was so despite recognition that the
decision that had been made about the existence of a threat to national security
involved political judgement. Against that background, the majority decided that the
response adopted here was not a proportionate one and was unjustifiably
discriminatory on prohibited grounds. The order was quashed.
[65]

We accordingly conclude that there is power to make a declaration of

inconsistency and that such a power is consistent with judicial function.
[66]

We add that in its reasoning towards the conclusion there was power for the

higher courts to make a declaration of inconsistency, the Court of Appeal canvassed
the relationship between the political and judicial branches of government and the role
of the higher courts under the New Zealand constitution.87 As is apparent, we have
not found it necessary to undertake a similar exercise. We are accordingly not to be
taken as endorsing the Court of Appeal’s approach towards these matters.

86
87

See also Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84 at [46].
Taylor (CA), above n 4, at [149]–[156] and [164]. We add that we are inclined to agree with the
Chief Justice below at [107] that the declaration is a response to those whose rights are affected,
and not, as the Court of Appeal suggested, to assist Parliament in its role.

 [67]

The remaining issues, that is, Mr Taylor’s standing and whether a declaration

should have been made in this case can be dealt with briefly.
Mr Taylor’s standing – the cross-appeal
[68]

As we have noted, no question of Mr Taylor’s standing was raised by the

Crown in either of the Courts below.88 The matter was accordingly not dealt with in
the High Court and was the subject of only brief discussion in the judgment of the
Court of Appeal. In these circumstances, we consider it is not helpful for us to traverse
broader questions of public interest standing. Given the way in which the issue of
standing arose, we do not have the benefit of these broader questions having been
properly ventilated in the Courts below.
[69]

Instead, we are content to conclude Mr Taylor has standing on the basis the

2010 Amendment expressly continued the prohibition on voting for long-term
prisoners especially in the context of a case focused on the jurisdiction of the court to
make a declaration of the type sought.89
The decision to grant a declaration in this case
[70]

As with standing, as the jurisprudence develops questions over the approach to

be taken to the exercise of the discretion to grant relief will arise. 90 However, we do
not need to resolve those questions or indeed any questions about how the discretion
to grant relief should have been exercised in this case. That is because the argument
before us focused on whether the court has the power to grant relief at all. In these
circumstances where, apart from the question of Mr Taylor’s standing, there were no
submissions addressed to the exercise of the discretion, we see no basis for disturbing
the conclusion of the Courts below that a declaration was appropriate.

88
89
90

See above at [17].
2010 Amendment, s 6.
In addition, there may well be a range of other practical issues about the approach to those cases
in which a declaration of inconsistency is sought. But it is not necessary or appropriate for us to
embark on a consideration of these matters now in the absence of argument.

 Result
[71]

For these reasons, in accordance with the view of the majority, the appeal is

dismissed. The cross-appeal is allowed. The effect of that decision is that Mr Taylor
has standing. However, as the Court of Appeal did not amend the declaration of
inconsistency granted,91 we need not amend the order granted below.
[72]

Costs are reserved. If not able to be agreed, submissions on costs should be

filed by the respondents on or before 4 pm on 28 November 2018 and by the appellant
on or before 4 pm on 5 December 2018. Any submissions in reply are to be filed by
the respondents on or before 4 pm on 12 December 2018.
ELIAS CJ
[73]

The High Court granted the respondents, all sentenced prisoners, a declaration

that the voter disqualification for prisoners under the Electoral (Disqualification of
Sentenced Prisoners) Amendment Act 2010 is “inconsistent with the right to vote
affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and
cannot be justified under s 5 of that Act”.92 The Court of Appeal dismissed the
Attorney-General’s appeal.93 He now appeals with leave to the Supreme Court on a
point of importance: does the High Court have jurisdiction to grant a declaration that
legislation is inconsistent with the New Zealand Bill of Rights Act? It is accepted that
the 2010 Act is inconsistent with the right to vote under s 12(a) and cannot be justified
under s 5 as a limitation that is reasonable in a free and democratic society. The
Attorney-General’s position is, rather, that the High Court has no power to grant a
declaration as a standalone remedy.
[74]

I have had the advantage of reading in draft the reasons given by

Ellen France J. I agree with her conclusion that a declaration is available as a remedy
in circumstances of legislative breach of the New Zealand Bill of Rights Act and am
in general agreement with her reasons, although I add some additional points of my
91
92

93

Taylor (CA), above n 4, at [189].
Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791 (Heath J) (referred to
throughout as Taylor (HC)) at [79].
Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 (Kós P, Randerson, Wild, French
and Miller JJ) (referred to throughout as Taylor (CA)).

 own and differ in emphasis on some matters. I do not repeat the matters of background
covered by Ellen France J, which I adopt.
The appeal
[75]

The applicants in the proceedings are sentenced prisoners who are prevented

by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 from
being eligible to vote. The 2010 Amendment Act disqualified all sentenced prisoners
by substitution of a new s 80(1)(d) of the Electoral Act 1993. It extended the
pre-existing ineligibility of prisoners serving sentences of three years or more to all
sentenced prisoners.
[76]

The three year disqualification term had originally been included in the

Electoral Act 1993 following the recommendation of the Royal Commission on
Electoral Reform that such a term was comparable to the proposed loss of voting rights
on three years’ absence from New Zealand.94 The same period was also used in the
1993 Act in the disqualification of those detained under mental health provisions.95
[77]

The new s 80(1)(d) is expressed to apply only to those sentenced after

enactment of the 2010 Amendment Act. For those prisoners already subject to
disqualification because their sentences were for three years or more, transitional
provisions in s 6 of the 2010 Amendment Act provided “[t]o avoid doubt” that a person
disqualified by reason of the former s 80(1)(d) “continues to be disqualified for
registration as an elector as if this Act had not been enacted”.
[78]

With the exception of Arthur William Taylor, all the respondents to the present

appeal are prisoners sentenced after enactment of the 2010 Amendment Act.
Mr Taylor was already a prisoner sentenced to more than 10 years of imprisonment at
the time of the amendment of s 80(1)(d). His disqualification is therefore continued
by the transitional provision contained in s 6 of the 2010 Amendment Act. An issue
on the appeal (although not in the High Court) is whether Mr Taylor has standing to

94

95

Royal Commission on the Electoral System “Report of the Royal Commission on the Electoral
System: Towards a Better Democracy” [1986–1987] IX AJHR H3 at [9.21].
Section 80(1)(c).

 seek a declaration that s 80(1)(d) is inconsistent with the right to vote contained in
s 12(a) of the New Zealand Bill of Rights Act.
[79]

The respondents’ statement of claim sought a declaration that the 2010

Amendment Act was inconsistent with the right to vote under s 12(a) of the
New Zealand Bill of Rights Act. It did not challenge the pre-existing disqualification
for those prisoners serving sentences of more than three years under s 80(1)(d) as
enacted in 1993.
[80]

In his statement of defence, the Attorney-General did not plead to the claims

of breach of s 12(a) (on the basis that they were assertions of law) but denied that the
prisoner applicants were entitled to any relief. In addition, the Attorney-General took
the position that the High Court lacked jurisdiction to make an order declaring an Act
of Parliament to be “inconsistent” with a provision of the New Zealand Bill of Rights
Act and, in any event, ought to decline to make any such order in the present case.
[81]

As already indicated, the Attorney-General accepts that the 2010 Amendment

Act is inconsistent with the right to vote contained in s 12(a) by which “[e]very New
Zealand citizen who is of or over the age of 18 years” has the right to vote in elections
of members of the House of Representatives. Nor does the Attorney-General seek to
argue that the blanket ban on prisoner voting is a limitation on the right to vote which
is justifiable in a free and democratic society under s 5 of the New Zealand Bill of
Rights Act.
[82]

In this position, the Attorney-General holds to the view first expressed in his

report on the Bill to the House of Representatives under s 7 of the Act. The report
acknowledged that the disqualification appeared to be inconsistent with s 12(a). And
it indicated that, because the proposed legislation was “both under and over inclusive”,
with “irrational effects” (which depended entirely on the date of sentencing), the effect
of the Bill was “disproportionate to its objective” and could not be justified under s 5.96

96

Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act
1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill (17 March 2010)
at [14]–[16].

 [83]

The history of the litigation in the Courts below is set out at [13]–[19] of the

reasons of Ellen France J and need not be repeated. A declaration of inconsistency
was made in the High Court and upheld on the Attorney-General’s appeal to the Court
of Appeal. Heath J considered that Mr Taylor was in a different position than the other
applicants but did not exclude him from the relief granted because no challenge had
been made to his standing.97 The Court of Appeal considered this approach was wrong
and that “[t]he Crown ought to have been attentive to the wider implications of
standing”. Because it considered that the point was, for Mr Taylor, “academic” it
declined him standing: “His rights are not sufficiently engaged to warrant an
incompatibility analysis, let alone to justify extending a formal invitation to Parliament
to reconsider the 2010 Act at his behest.”98
[84]

The principal area of dispute in the Courts below was about availability of the

remedy of declaration of inconsistency. The Attorney-General did not seek to justify
the blanket disqualification of prisoners introduced in 2010. As recorded by Heath J
in the High Court, counsel for the Attorney-General advised the Court that he did not
resile from the view in the s 7 report that “the present s 80(1)(d) appeared to be
inconsistent with s 12 of the Bill of Rights, and could not be justified under s 5”.99 No
such concession was made in relation to the disqualification of prisoners already
serving sentences of three years or more under the pre-existing legislation continued
in effect by s 6 of the 2010 Amendment Act.100 The compatibility with s 12(a) of the
disqualification on the basis of three years’ imprisonment previously in effect and
maintained in relation to prisoners like Mr Taylor is not in issue on the appeal.
[85]

The questions on which leave was granted for appeal to the Supreme Court

were whether the Court of Appeal was correct to make a declaration of inconsistency
and whether Mr Taylor has standing in the appeal.101

97
98
99
100

101

Taylor (HC) at [3].
Taylor (CA) at [177].
Taylor (HC) at [32].
Continued disqualification of prisoners already serving sentences of three years or more is
provided for in s 6(a) of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act
2010. It is unnecessary to decide whether without that provision existing disqualification would
be a matter of “status” preserved by s 17 of the Interpretation Act 1999, as was suggested in
argument.
Attorney-General v Taylor [2017] NZSC 131.

 The statutory and common law context
[86]

The Supreme Court of New Zealand, first established in 1841, was given

“jurisdiction in all cases as fully as Her Majesty’s Courts of Queen’s Bench Common
Pleas and Exchequer at Westminster have in England” and “all such equitable
jurisdiction as the Lord High Chancellor of Great Britain hath in England”.102 The
jurisdiction conferred included the inherent jurisdiction of the British courts as well as
jurisdiction conferred by statute. When the Judicature Act was enacted in 1908, it
provided that “[t]he Court shall continue to have all the jurisdiction which it had on
the coming into operation of this Act and all judicial jurisdiction which may be
necessary to administer the laws of New Zealand”.103 The Supreme Court, renamed
the High Court in 1980, has continued to have the jurisdiction described in the
Judicature Act 1908.
[87]

Today the general jurisdiction of the High Court is described in s 12 of the

Senior Courts Act 2016:
12

Jurisdiction of High Court
The High Court has—

[88]

(a)

the jurisdiction that it had on the commencement of this Act;
and

(b)

the judicial jurisdiction that may be necessary to administer
the laws of New Zealand; and

(c)

the jurisdiction conferred on it by any other Act.

The New Zealand Bill of Rights Act 1990 was enacted “to affirm, protect, and

promote human rights and fundamental freedoms in New Zealand” and “to affirm New
Zealand’s commitment to the International Covenant on Civil and Political Rights”.104
It “affirms” the “rights and freedoms” identified in Part 2 of the Act, largely patterned
on the provisions of the ICCPR, but makes it clear that “existing” rights and freedoms

102

103
104

Supreme Court Ordinance 1841 5 Vict 1, cls 2 and 3. Clauses 2 and 3 of the Supreme Court
Ordinance 1844 7 Vict 1 (which replaced the 1841 Ordinance following its disallowance) were in
the same terms.
Judicature Act 1908, s 16.
Long title, referring to the International Covenant on Civil and Political Rights 999 UNTS 171
(opened for signature 16 December 1966, entered into force 23 March 1976).

 are not abrogated or restricted “by reason only that the right or freedom is not included
in this Bill of Rights or is included only in part”.105
[89]

Section 12 of the New Zealand Bill of Rights Act affirms art 25 of the

International Covenant on Civil and Political Rights. It recognises a right to vote in
elections. Commentary by the United Nations Human Rights Committee recognises
that the right to vote may be restricted for grounds which are reasonable and to an
extent that is proportionate, and that suspension of the right to vote of prisoners if
proportionate and reasonable may not breach the right.106
[90]

The “right to justice” recognised in s 27 of the New Zealand Bill of Rights Act

provides every person with “rights, obligations, or interests protected or recognised by
law” with the right to apply, in accordance with law, for judicial review of any
determination of a public authority which affects those rights, obligations, or interests.
[91]

The New Zealand Bill of Rights Act applies only to the exercise of public

power. Its application is set out in s 3:
3

Application
This Bill of Rights applies only to acts done—

[92]

(a)

by the legislative, executive, or judicial branches of the
Government of New Zealand; or

(b)

by any person or body in the performance of any public
function, power, or duty conferred or imposed on that person
or body by or pursuant to law.

Section 4 makes it clear that “other enactments”107 are not affected by

inconsistency with the Bill of Rights:

105
106

107

Sections 2 and 28.
Office of the High Commissioner for Human Rights CCPR General Comment No 25: Article 25
(Participation in Public Affairs and the Right to Vote) – The Right to Participate in Public Affairs,
Voting Rights and the Right of Equal Access to Public Service UN Doc CCPR/C/21/Rev.1/Add.7
(12 July 1996) at [14].
Defined by s 29 of the Interpretation Act as “the whole or a portion of an Act or regulations”.
“Act” is itself defined as “an Act of the Parliament of New Zealand or of the General Assembly;
and includes an Imperial Act that is part of the law of New Zealand”. Regulations are also defined
to include rules made by Order in Council or other legislative instruments.

 4

Other enactments not affected
No court shall, in relation to any enactment (whether passed or made
before or after the commencement of this Bill of Rights),—
(a)

hold any provision of the enactment to be impliedly repealed
or revoked, or to be in any way invalid or ineffective; or

(b)

decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of
this Bill of Rights.

[93]

The scheme of the New Zealand Bill of Rights Act is careful. It does not in its

terms prevent judicial review of acts of the legislative, executive, or judicial branches
of government for rights consistency. Indeed, s 27 of the Bill of Rights on its face
recognises a right to apply for judicial review by someone whose rights or interests
are affected. Such rights and interests must include those rights under the New
Zealand Bill of Rights Act itself. Whether there is a right recognised by s 27 to judicial
review of legislation which is inconsistent with rights is not a question directly before
us. The Crown has not sought to argue that judicial review cannot be available.
Rather, it argues that the Court does not have jurisdiction to grant declaratory relief
that legislation is inconsistent with rights confirmed in the New Zealand Bill of Rights
Act.
Declarations relating to rights are judicial functions
[94]

A principal argument on behalf of the Attorney-General was that the

declaration sought was outside proper judicial function because “advisory” only in
circumstances where no further consequential relief was available. Reference was
made to observations in Australia that such advisory opinions are not within the
judicial function of the Commonwealth. Reference was made also to the absence of
any “advisory jurisdiction” such as the reference mechanism available under the
Supreme Court Act in Canada.108 The argument advanced for the Attorney-General
drew also on statements made by the House of Lords about the departure from
“traditional” function necessitated by the power to make declarations conferred in the
Human Rights Act 1998 (UK).

108

Supreme Court Act RSC 1985 c S-26, s 53.

 [95]

The suggestion that the High Court has no proper function in declaring rights

unless the declaration has further consequence for legal interests seems to me to be
over-broad. The jurisdiction to grant a declaration as to the inconsistency of legislation
with rights is not comparable with the Canadian advisory opinion mechanism which
was considered and rejected when the New Zealand Supreme Court was set up.109 In
what follows I also indicate why I do not think that the reliance placed by the
Attorney-General on the decisions of the High Court of Australia in Momcilovic v R110
and the House of Lords in A v Secretary of State for the Home Department111 is helpful
to the argument. But the immediate point to be made about the suggestion that
declaration of rights takes the judiciary out of its proper role is that the submission is
inconsistent with our own legal order. It is inconsistent with the obligation of the
courts to grant remedies for infringement of the New Zealand Bill of Rights Act, for
reasons given by Ellen France J with which I agree. It is also inconsistent with the
Declaratory Judgments Act 1908.
[96]

The Declaratory Judgments Act 1908 is an Act of general application. By s 2

it provides that:
No action or proceeding in the High Court shall be open to objection on the
ground that a merely declaratory judgment or order is sought thereby, and the
said Court may make binding declarations of right, whether any consequential
relief is or could be claimed or not.

[97]

This stand-alone provision making it clear that binding declarations of right

may be made whether or not consequential relief is sought is distinct from the
jurisdiction recognised by s 3 of the Act to make declaratory orders on originating
summons. Indeed, s 11 recognises that declaratory judgments or orders may be made
in cases where the Court “has no power to give relief in the matter to which the
judgment or order relates” and irrespective of whether the matter would otherwise “be
within the exclusive jurisdiction of any other Court”.

109

110
111

Replacing the Privy Council: A New Supreme Court (Office of the Attorney-General, April 2002)
at 48–49.
Momcilovic v R [2011] HCA 34, (2011) 245 CLR 1.
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.

 Such declaratory orders may be made where the effect of something any person

[98]

desires to do depends on the construction or validity of any statute.112 The order has
“the same effect as the like declaration in a judgment in an action” and binds anyone
on whom the summons is served (pursuant to directions made by the Court on
application) “and on all other persons who would have been bound by the said
declaration if the proceedings wherein the declaration is made had been an action”.113
Both “declaratory judgments” made in any action or proceeding and

[99]

“declaratory orders” made under the originating summons procedure provided by the
Declaratory Judgments Act may be made “in anticipation of any act or event”,
providing authoritative advice against which future actions can be taken.114
Declaratory judgments and orders are discretionary and may be declined by the Court
“on any grounds which it deems sufficient”.115
[100] The scheme of the Declaratory Judgments Act, in permitting declarations
which have no other effect or are “anticipatory” and which are available even if the
Court “has no power to give [other] relief”, permits appropriate remedy for breaches
of rights. In the case of legislative encroachment on rights, envisaged by the terms of
s 4 of the New Zealand Bill of Rights Act, it meets rule of law concerns about
non-vindication of fundamental rights owed by the legislative branch under s 3, while
observing parliamentary supremacy in law-making.
The reason for a declaration
[101] As indicated, I agree with the reasons given by Ellen France J at [53]–[58] in
explaining why a declaration of inconsistency is important in providing formal
confirmation that the blanket disqualification of prisoners from voting is in breach of
their rights under s 12(a). As she explains, such declaration may have implications
under the Optional Protocol to the International Covenant on Civil and Political
Rights.

More immediately, it is a formal and authoritative statement which is

vindication for the appellants in the litigation. For example, it may have implications

112
113
114
115

Section 3.
Section 4.
Section 9.
Section 10.

 in relation to re-litigation in the future between those who are parties to the decision
or who are served with notice of it. As the Declaratory Judgments Act makes clear,
but as also follows from common law principles, only those party to the judgment or
who are served with notice of an application for declaratory order are bound by it and
procedural rules to bring in such parties are provided both in the Declaratory
Judgments Act itself and in the High Court Rules.
[102] In addition to expressing agreement with the reasons given by Ellen France J
as to why declaratory relief is available in vindication of rights, I also consider it is
necessary to express my disagreement with what I consider to be an over-ambitious
argument advanced for the Attorney-General. It was argued that there is no breach of
rights in the enactment of inconsistent legislation since the legislation abridging the
right has changed its scope. That submission denies the fundamental nature of the
enacted rights (declared as such in the legislation) and is inconsistent with indications,
contained for example in the Cabinet Manual, that legislation such as the New Zealand
Bill of Rights Act occupies a position properly described as “constitutional”.116 Nor
is the argument easy to reconcile with the principle of legality, which requires
Parliament to speak unmistakeably when limiting fundamental rights recognised by
the common law.117 More importantly, I do not think it is an argument that is consistent
with the scheme of the New Zealand Bill of Rights Act. The Act requires legislation
to be given effect when it is inconsistent with the rights contained in the Act but
withholds the legitimacy of compliance with those fundamental rights. That is because
s 3 provides that observance of rights applies to acts of the legislature.
[103] Under New Zealand constitutional arrangements, saying whether the
obligation of compliance has been met is inescapably a judicial function. I consider
that the scheme of the New Zealand Bill of Rights Act means that modification of the
content of rights contained in the Act is unlikely to be accomplished by inconsistent
action but will generally need legislative amendment of the New Zealand Bill of

116
117

Cabinet Office Cabinet Manual 2017 at 2.
R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 131
per Lord Hoffmann.

 Rights Act itself.118

That does not affect the ability of Parliament to legislate

inconsistently with the New Zealand Bill of Rights Act. A declaration by the
High Court that it has acted inconsistently with a right does not impede the freedom
of action of Parliament.
[104] I agree with Ellen France J that, as recognised in Baigent’s case,119 the courts
can provide remedies for breaches of the New Zealand Bill of Rights Act by drawing
on the full range of general remedial responses they possess. In the case of the
High Court, that includes through development of the common law as Gault J
suggested might be appropriate in Baigent’s case.120 Such development is consistent
with the statutory recognition that the High Court has “the judicial jurisdiction that
may be necessary to administer the laws of New Zealand”, laws which now include
ss 3 and 4 of the New Zealand Bill of Rights Act.
[105] It seems to me that the scheme of the New Zealand Bill of Rights Act makes it
clear that inconsistency with rights is indeed itself a question of right for which
declaratory relief may be sought. I am not able to agree with the view of the Court of
Appeal at [66] that a declaration of inconsistency “is not a declaration of right”.121
Declaration of right is available if inconsistency is a result of executive or judicial
action. In such cases declaratory relief may well be in addition to other relief, but will
be especially important where no other relief is available (as for example where there
is an immunity as in Attorney-General v Chapman122). Otherwise there is a rule of
law deficit, in relation not only to inconsistency with the right but in relation to absence
of justification.
[106] The innovation accomplished by s 3 of the New Zealand Bill of Rights Act is
its recognition that inconsistency with the enacted human rights may be as a result of
legislation. Section 4 is a precise provision which requires inconsistent legislation to

118

119
120
121

122

For a recent example of legislative amendment of the New Zealand Bill of Rights Act see the New
Zealand Bill of Rights Amendment Act 2011 which amended s 24(e) to reflect the regime
established in the Criminal Procedure Act 2011.
Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case].
At 711.
If Boscawen v Attorney-General (No 2) [2008] NZAR 468 (HC) (aff’d [2009] NZCA 12,
[2009] 2 NZLR 229) is authority for a different proposition, I would not follow it.
Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.

 be observed (at least if breach of the New Zealand Bill of Rights is the “only” reason
for invalidity). It leaves open what other relief may be appropriate. Declaration seems
to me to be an obvious remedial response available to the Court given s 4 where
legislative limitation is not justified.
[107] I am of the view that declaration in such circumstances is an available remedy
for acts of the legislature constituting unjustified infringement of rights. I prefer to
see such response as one made to those whose rights are affected, rather than one to
assist Parliament in its function, as the Court of Appeal suggested.
[108] The case of Momcilovic relied upon in argument by the Attorney-General in
support of the contention that declaration is not an appropriate judicial function
concerned the Victorian Charter of Human Rights and Responsibilities Act 2006.
Under s 36 of the Charter the Supreme Court of Victoria was empowered to make a
declaration that legislation cannot be interpreted consistently with the Charter. Such
declaration was stipulated in the legislation to have no legal effect on the outcome of
proceedings before the Court. Nor did it affect the validity of the statutory provision
under consideration.123
[109] The High Court of Australia took the view that the power under s 36 was not a
judicial function, although Crennan and Kiefel JJ dissented on the point, being of the
view that the declaratory function conferred was ancillary to judicial function.124 As
a result, French CJ and Bell J held that it could not found an appeal to the High Court
under s 73 of the Constitution because it did not raise a “matter”.125 Gummow and
Hayne JJ held that s 36 was invalid as entailing conferral of non-judicial function on
courts invested with federal jurisdiction because such declarations could “produce no
foreseeable consequences for the parties”.126 Heydon J agreed that s 36 was invalid
but would also have found the Charter as a whole invalid.127

123
124
125
126
127

Section 36(5).
Momcilovic at [582]–[600].
At [88] and [98]–[101] per French CJ (Bell J agreeing at [661]).
At [172]–[189] per Gummow J (Hayne J agreeing at [280]).
At [456]–[457].

 [110] The analysis undertaken in Momcilovic depends on constitutional context
which is quite different from that which applies in New Zealand.128 It also turns upon
imperatives relating to the consistency of the common law throughout Australia which
do not apply in our unitary legal order.
[111] Comparison is also affected by the very different terms of the Victorian Charter
and the New Zealand Bill of Rights Act. The requirement under s 3 of the New
Zealand Bill of Rights Act that the rights recognised apply to acts of the legislative
branch has no parallel in the Victorian Charter. Further difference in the New Zealand
legal order arises from the long-standing jurisdiction of the High Court in New
Zealand to grant declaratory relief, whether or not any other relief is available,
discussed above at [94]–[100]. Because of these very different constitutional and
legislative circumstances, I do not consider that the reasoning in Momcilovic is helpful
when considering the remedies available in New Zealand under the New Zealand Bill
of Rights Act.
[112] The argument for the Attorney-General also relied on the decision of the House
of Lords in A v Secretary of State for the Home Department. In issue in that case was
the validity of a declaration granted by the Special Immigration Appeals Commission
that determination of the Secretary of State that there was a public emergency
threatening the life of the nation (permitting derogation from the right to personal
liberty under art 5(1) of the European Convention for the Protection of Human Rights
and Fundamental Freedoms129) was incompatible with the anti-discrimination
provisions of the Convention. The Court of Appeal had allowed the appeal by the
Secretary of State. The House of Lords, by majority, confirmed that the determination
of the question of threat to national security was a matter of political judgment which
the courts would be reluctant to second-guess. It nevertheless concluded that the
response adopted was disproportionate and was unjustifiably discriminatory on the

128

129

It entails stricter separation of powers than applies in jurisdictions with similar primary
constitutional texts such as the United States or Canada: Michael Taggart “‘Australian
Exceptionalism’ in Judicial Review” (2008) 36 FL Rev 1 at 4–5; and see also Scott Stephenson
“Rights Protection in Australia” in Cheryl Saunders and Adrienne Stone (eds) The Oxford
Handbook of the Australian Constitution (Oxford University Press, Oxford, 2018) 905 at 922.
Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221
(opened for signature 4 November 1950, entered into force 3 September 1953).

 basis of nationality or immigration status. It quashed the order of derogation on that
basis.
[113] It is clear from the reasons of members of the House of Lords that, even on the
threshold question of whether there was a state of public emergency, there was no
complete division of institutional responsibility between courts and the political
branches.

Thus, Lord Bingham recognised a “spectrum” in which the relative

institutional competencies of courts and political decision-makers would vary
according to the nature of the question in issue.130 At the political end of the spectrum
strong grounds would be required to displace the determination of the Secretary for
State. But that was not to suggest the supervisory jurisdiction of the courts was ousted.
[114] In relation to the proportionality of the response to the threat, Lord Bingham
rejected the distinction drawn by the Attorney-General between the political and
judicial spheres. The Attorney-General had been “fully entitled to insist on the proper
limits of judicial authority”, but he had been “wrong to stigmatise judicial
decision-making as in some way undemocratic”.131 That was particularly the case
since s 6 of the Human Rights Act 1998 (UK) made it unlawful for courts, as well as
other public authorities, to act inconsistently with Convention rights.

In such

circumstances Lord Bingham, citing Professor Jowell, thought that the courts had been
“charged by Parliament with delineating the boundaries of a rights-based
democracy”.132
[115] With Lord Walker as the sole dissentient and Lord Hoffmann prepared to go
further and hold that there was no emergency justifying recourse to derogation, the
other members of the House of Lords were in general agreement with Lord Bingham.
Lord Nicholls referred to the “duty” of the courts under the Human Rights Act “to
check that legislation and ministerial decisions do not overlook the human rights of
persons adversely affected” and their “responsibility” to intervene if the primary
decision-maker had given insufficient weight to human rights.133 Lord Hoffmann

130
131
132

133

A v Secretary of State for the Home Department at [29].
At [42].
At [42], citing Jeffrey Jowell “Judicial Deference: servility, civility or institutional capacity?”
[2003] PL 592 at 597.
At [80].

 treated declaratory relief as entirely appropriate in relation to legislative encroachment
on rights. Lord Scott acknowledged, as other members had done, that the supervision
of legislative action was an enlargement of the “normal” function of the courts but one
that was laid on the courts by the Human Rights Act.134 Lord Rodger accepted that
under the Human Rights Act it is for the courts to “police” any lawful limits on
executive or legislative decision-making, although he thought that the function being
undertaken was the “traditional role” of the courts in protecting liberty. 135 Baroness
Hale and Lord Carswell expressed complete agreement with the reasons of the other
judges in the majority.136
[116] I do not read A v Secretary of State for the Home Department as providing any
support for the argument that granting a declaration relating to legislative limitation of
rights is a non-judicial function. It is recognised to be an extension of the role of the
courts, but it is accepted that the function under the Human Rights Act 1998 (UK) was
to ensure that human rights are observed, including in legislation.

And, as

Lord Rodger points out, such protection of rights is a “traditional role” of the courts,
even if its application to the acts of the legislative branch is unusual under our
constitutional arrangements.
[117] In New Zealand, there is no equivalent statutory conferral of a power to grant
a declaration of incompatibility under the New Zealand Bill of Rights Act such as is
found in the Human Rights Act 1998 (UK). That circumstance does not in my view
mean that the reasoning in A v Secretary of State for the Home Department can be
distinguished or that in New Zealand declaratory relief is inappropriate. I consider
that the availability of declaratory relief follows from the scheme of the New Zealand
Bill of Rights Act and its requirement that the rights recognised apply to the acts of
the legislature. That is constitutional innovation, but it is a consequence of enactment
of s 3. The responsibility to declare and maintain the boundaries and protect against
erosion of human rights is however itself a traditional role undertaken by the courts,
even though its application to legislative acts is unusual. The obligation of the courts
is also reinforced by the inclusion of acts of the judicial branch as ones to which the

134
135
136

At [145].
At [176]–[178].
At [219] per Baroness Hale and [240] per Lord Carswell.

 rights contained in the New Zealand Bill of Rights Act apply. The Act treats the
exercise of all jurisdiction of the courts, statutory and inherent, as itself public power
in the exercise of which the rights and freedoms contained in the Act apply. Section 3
equally imposes in their acts the obligation to observe the New Zealand Bill of Rights
Act, including in development of the common law.
[118] No statutory conferral of power to declare the law is required because such
powers of declaration are within the inherent jurisdiction of the High Court, as
explained above at [94]–[100]. Statutory conferral of a power to make declarations
may have been necessary in the United Kingdom because the Human Rights Act 1998
(UK) does not contain a provision equivalent to s 3. The fact that the acts of the
legislature are subject to the New Zealand Bill of Rights Act means that declaring
whether it has acted inconsistently with that obligation is within the inherent
jurisdiction of the High Court to say what the law is and because it has “the judicial
jurisdiction that may be necessary to administer the laws of New Zealand”, which
include the New Zealand Bill of Rights Act.
[119] By contrast, because it is a statutory body, possessing no inherent jurisdiction,
it was necessary for the jurisdiction to make declarations of incompatibility to be
provided to the Human Rights Review Tribunal by the Human Rights Amendment Act
2001. But the conferral of that statutory jurisdiction is parliamentary recognition that
declaratory jurisdiction is not incompatible with the New Zealand legal order and the
balances struck by human rights legislation.
The claim by Arthur William Taylor
[120] I consider that Mr Taylor had sufficient standing to apply for a declaration that
the 2010 legislation was in breach of the rights of sentenced prisoners to vote, applying
general principles of standing in public law.137 I do not accept the view expressed by
the Court of Appeal that claims for declaratory relief for infringement of rights require
a different approach to standing.138 Mr Taylor cannot be treated as a busy-body with
137

138

See Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses
Ltd [1982] AC 617 (HL); Environmental Defence Society Inc v South Pacific Aluminium Ltd
(No 3) [1981] 1 NZLR 216 (CA); and Budget Rent A Car Ltd v Auckland Regional Authority
[1985] 2 NZLR 414 (CA).
See Taylor (CA) at [166].

 no sufficient interest in vindication of the rights of prisoners. The observance of
s 12(a) in relation to prisoners imprisoned for more than three years is not before us.
But any interests Mr Taylor may have in challenging the arrangements under which
he is disqualified are directly affected by the Attorney-General’s stance that
declaratory relief is never available for legislative breach of the New Zealand Bill of
Rights Act. That position, the sole basis on which the appeal is brought in this case,
is a stance of general application which would affect any claim he may subsequently
bring relating to infringement of his rights.

The declaration made, which the

respondents seek to uphold in this Court, is not expressed in terms of violation of the
rights of any of the respondents but is simply that the 2010 Amendment Act is
“inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New
Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act”. I
consider that Mr Taylor has standing to seek that declaration and would allow his
cross-appeal.
Conclusion
[121] I accept that whether to grant declaratory relief is a matter for assessment by
the Court. In the present case I consider that the Courts below were right to make a
declaration that the legislation is incompatible with s 12(a) because it was the only
response available for denial of the right to vote in circumstances acknowledged not
to be justified. For the reasons given, I would uphold the declaration made in the High
Court.
WILLIAM YOUNG AND O’REGAN JJ
(Given by O’Regan J)
The issue
[122] The issue in this appeal is whether there is jurisdiction for the courts to issue
declarations of inconsistency as a remedy for a person affected by a provision of a
statute that is inconsistent with the New Zealand Bill of Rights Act 1990 and not a
reasonable limit on the right that is justified in a free and democratic society. Like
Ellen France J, we consider that, if such a jurisdiction exists, it flows from the Bill of
Rights Act itself. The lack of express provision ruling out or ruling in such a
jurisdiction means there is scope for differing views. We acknowledge the force of

 the reasoning of Ellen France J and the Chief Justice, but have concluded that the
better view is that, in the absence of a power conferred by statute, there is no such
jurisdiction. We would therefore allow the Attorney-General’s appeal and set aside
the declaration made in the High Court. As this is a dissenting judgment, we will set
out our reasons for this conclusion briefly.
Background
[123] The judgment of Ellen France J sets out the background and the relevant
statutory provisions. We adopt her summary of the decisions of the High Court and
Court of Appeal in these proceedings and of earlier decisions addressing the issue that
arises in this case.
From indications of inconsistency to declarations of inconsistency
[124] There is no dispute that effective remedies should be available for breaches of
the Bill of Rights Act.139
[125] Nor is there any question about the propriety of an indication of inconsistency
being made in the context of the resolution of a dispute about the interpretation of a
statute as set out by McGrath J in Hansen and Tipping J in Moonen.140 But three things
can be said about such indications. First, they are not purporting to be a remedy for a
breach, granted to a victim of the breach. Secondly, they are a step in the reasoning to
resolve a controversy before the court, rather than the resolution of a controversy.
Thirdly, they are not a remedy that can be sought in a standalone claim for a declaration
of inconsistency: there needs to be a controversy that requires the court to consider
whether a provision is inconsistent in the course of an interpretation dispute requiring
an analysis of ss 4, 5 and 6 of the Bill of Rights Act.
[126] The issue is whether the courts have jurisdiction to make a declaration in a
self-standing proceeding, where the only issue is whether the statutory provision in

139

140

Ellen France J, above at [29]–[30]; Simpson v Attorney-General [1994] 3 NZLR 667 [Baigent’s
case] (CA) at 676 per Cooke P.
Ellen France J, above at [31]; R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [253]–[254] per
McGrath J; and Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at
[19]–[20] per Tipping J.

 issue is inconsistent with the Bill of Rights Act. The justification for this is said to be
that Parliament has breached the Bill of Rights Act by passing the legislation
containing the provision and the Court must fashion a remedy for the victim, that is
the person whose right has been limited by the provision in a manner that is not
reasonably justifiable. Ellen France J says the making of a formal declaration is a
logical step from the idea that an effective remedy should be available for a breach of
the Bill of Rights Act and the courts can draw upon the ordinary range of remedies to
provide such a remedy.141
[127] In all the other jurisdictions where declarations of inconsistency or similar
instruments are available, the purpose of the declaration is not to provide a remedy for
a breach, because in all cases the legislature is not bound by the relevant rights
instrument, so no breach occurs when inconsistent legislation is passed.142 Rather, it
is a sui generis process. In all cases, granting a declaration has legal consequences.
In Victoria, the Australian Capital Territory and the Republic of Ireland, the making of
a declaration triggers a requirement that a Minister or a similar public official draw
the inconsistency to the attention of the legislature.143 This is designed to prompt a
reconsideration by the legislature.144 In New Zealand, the Human Rights Act 1993
provides for a similar process where a declaration of inconsistency with the Human
Rights Act is made by the Human Rights Review Tribunal under s 92J(2) of that Act.145
In the United Kingdom, the making of a declaration of incompatibility triggers a
remedial power allowing the relevant Minister to make amendments to the legislative
provision in question to remove the incompatibility.146

141
142

143

144

145
146

Ellen France J, above at [38].
See the Human Rights Act 2004 (ACT), ss 40(2)(a) and 40B; Charter of Human Rights and
Responsibilities Act 2006 (Vic), s 4(1)(i); Human Rights Act 1998 (UK), s 6(3); European
Convention on Human Rights Act 2003 (Republic of Ireland), s 1(1), definition of “organ of the
state”.
See the Human Rights Act 2004 (ACT), ss 32(4) and 33; Charter of Human Rights and
Responsibilities Act 2006 (Vic), s 36(6) and 36(7); European Convention on Human Rights Act
2003 (Republic of Ireland), s 5(3),
In the Australian Capital Territory and Victoria, the government is required to provide a formal
response to the legislature within six months of receiving the declaration: see the Human Rights
Act 2004 (ACT), s 33(3); Charter of Human Rights and Responsibilities Act 2006 (Vic), s 37.
Human Rights Act 1993, s 92K(2) and (3).
Human Rights Act 1998 (UK), s 10(2). This power is rarely used but amendments to resolve
incompatibility issues have been made more frequently by the normal legislative process.

 [128] As noted in the judgment of Ellen France J at [56], Cooke P said in
Temese v Police that a statement of inconsistency “could be seen by some to be
gratuitously criticising Parliament by intruding an advisory opinion”.147 He then said
he thought it was possible that price should be paid, but it is not clear that he was
foreshadowing a declaration granted as a remedy for a breach or an indication of the
kind made in Hansen.
[129] In his Robin Cooke Lecture in 2010, Sir Anthony Mason talked about the
possibility of a statement of inconsistency or a finding of inconsistency, but rejected
the idea that there should be a declaration granted as relief or as a remedy. 148 In the
same lecture, he said:
The making of a formal declaration of inconsistency would have more
significance if: (a) the court were authorised or required to make such a
declaration; and (b) the Attorney-General were required (i) to be joined as a
party; and (ii) to bring the making of a declaration to the notice of parliament
within a prescribed time.

[130] We agree with that statement. In the Human Rights Act and the overseas
models that provide for declarations of inconsistency to be made by a court, those
features are present.149
[131] We accept that it would not be inconsistent with judicial function to have a
process for making declarations of inconsistency, where that is a process mandated by
the legislature.

But, as just noted, in the overseas models, a declaration of

inconsistency is not a remedy for breach of the relevant rights instrument. That raises
the question of whether, when Parliament passes an inconsistent statutory provision,
there is a breach of the Bill of Rights Act of a character for which the courts should
fashion a civil remedy.

147
148

149

Temese v Police (1992) 9 CRNZ 425 (CA) at 427.
Anthony Mason “Human Rights: Interpretation, Declarations of Inconsistency and the Limits of
Judicial Power” (2011) 9 NZJPIL 1 at 14.
With the exception of the UK Human Rights Act in relation to (b)(ii): see above at [127]. See also
above at n 143; Human Rights Act 2004 (ACT), ss 34 and 35; Charter of Human Rights and
Responsibilities Act 2006 (Vic), s 36(3) and (4); Human Rights Act 1998 (UK), s 5; and European
Convention on Human Rights Act 2003 (Republic of Ireland), s 6.

 Declaration of inconsistency as a remedy for breach
[132] Professor Claudia Geiringer considers this issue in detail in an article published
in 2007.150 In that article, she expressed doubt as to whether s 3(a) of the Bill of Rights
Act imposes on Parliament a legal obligation to legislate consistently with the Bill of
Rights Act (albeit that this obligation cannot be enforced by the courts because of s 4).
She described this view of s 3(a) as “fundamentally at odds with the policy of
continuing legislative supremacy that underlay the enactment of the Bill of Rights”.151
[133] It is true that the provision which is now s 3 was in its current form when the
proposed Bill of Rights was intended to be supreme law.152 However, the inclusion of
s 4 into the Bill prior to its passing means that s 3(a), which says the Bill of Rights Act
obligations apply to Parliament is immediately followed by s 4, which contemplates
that Parliament will pass inconsistent legislation and that it will be effective.153 In
those circumstances, it is hard to see that s 3 is any limitation on Parliament’s power
to legislate. It is at least arguable that to the extent that there is a breach of the Bill of
Rights resulting from the passing of inconsistent legislation, it is not of a character for
which the courts are required to fashion a civil remedy. After all, s 4 removes the only
truly effective remedy from consideration.
[134] We think it is also problematic as to whether a declaration of inconsistency is
really a remedy and, if it is, whether it is an effective remedy. It does not do anything
to benefit the “victim” in that the inconsistent statutory provision continues to apply
so whatever limitations on the victim’s rights have occurred continue to apply. Nor
does it bind anyone to do anything. One commentator has described the power to

150

151
152

153

Claudia Geiringer, “The Dead Hand of the Bill of Rights? Is the New Zealand Bill of Rights Act
1990 a Substantive Legal Constraint on Parliament’s Power to Legislate?” (2007) 11 Otago
LR 389.
At 415.
See Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6
[the White Paper] at 69. Clause 2 of the draft Bill proposed in the White Paper is on substantially
similar terms to the current s 3 of the New Zealand Bill of Rights Act 1990.
Following consultation with the public, the Justice and Law Reform Committee recommended the
proposed Bill of Rights Act be downgraded from “supreme” to “ordinary” law: “Final Report of
the Justice and Law Reform Committee on a White Paper on a Bill of Rights for New Zealand”
[1987–1990] XVII AJHR I 8C. This recommendation was carried through into the New Zealand
Bill of Rights Bill 1989 (203-1). However, the current s 4 was not inserted until after the Select
Committee process: see New Zealand Bill of Rights Bill 1990 (203-2) (select committee report)
at 2–3.

 make such declarations as “a judicial power to make non-binding declarations of legal
non-right”.154 Again, this would be a unique feature of a New Zealand declaration of
inconsistency because the declarations of inconsistency available under equivalent
statutes in Australia, Ireland and the United Kingdom do have legal consequences, as
described earlier.155 Rather, a declaration would simply hang in the air and possibly
create some sort of moral obligation on the part of the legislature to reconsider.156 That
in turn carries the risk that a formal order of the court may be simply ignored, with the
consequential danger of the erosion of respect for the integrity of the law and the
institutional standing of the judiciary.157
[135] Section 20L(1) of the Human Rights Act says that an enactment that is
inconsistent with the right to be free from discrimination under s 19 of the Bill of
Rights Act is a breach of Part 1A of the Human Rights Act. Section 92J provides that,
if a finding is made that legislation breaches Part 1A of the Human Rights Act, the
only remedy is the statutory declaration of inconsistency provided for in that section.
Both the Attorney-General and the Human Rights Commission sought to draw support
for their contrasting views from these provisions.
[136] For the Human Rights Commission, Mr Butler argued that these provisions
were significant for three reasons. First, they demonstrated that Parliament recognised
that a declaration of inconsistency jurisdiction would contribute to a robust human
rights culture. We accept that is so, but we do not see that as supporting the case for a
similar jurisdiction in the absence of a statutory provision conferring it. Secondly,
s 92J(4) provides that nothing in s 92J affects the Bill of Rights Act, which clarifies
that s 92J did not impliedly exclude a similar jurisdiction existing under the Bill of
Rights Act. We accept this too, but we do not see that it can be converted into an
indication by Parliament that a similar jurisdiction under the Bill of Rights Act exists
in the absence of any statutory provision to that effect. Thirdly, as the s 92J jurisdiction
154

155
156

157

Claudia Geiringer “The Constitutional Role of the Courts under the NZ Bill of Rights: Three
Narratives from Attorney-General v Taylor” (2017) 48 VUWLR 547 [Geiringer 2017] at 551.
Above at [127].
As the Court of Appeal suggested: Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR
24 at [151], citing the observation made by McGrath J in R v Hansen, above n 140, at [254]. That
observation was made in relation to an indication of inconsistency made as part of the Court’s
reasoning, rather than a formal court order, where one would normally expect an obligation rather
than an expectation.
See Geiringer 2017, above n 154, at 570.

 can be exercised by the courts on appeal from the Human Rights Review Tribunal, it
would be anomalous if the courts could make declarations of inconsistency under s 92J
but not otherwise. We see that as an argument that a more generic stand-alone
jurisdiction to make declarations of inconsistency would be desirable, rather than that
it exists.
[137] For the Attorney-General, the Solicitor-General argued that s 92J demonstrates
that the legislative conferral of a power to make declarations of inconsistency is
possible, but, until that is done, the making of a declaration of inconsistency is not a
recognised judicial function.158 She argued s 92J(4) was designed to ensure that the
new jurisdiction under s 92J did not imply, recognise or confer a similar power on the
courts in relation to the Bill of Rights Act generally. These points are arguable but the
fact that s 92J can be credibly called in aid of such conflicting positions means that
ultimately it does not provide strong support for either argument. It is notable,
however, that the remedy available under s 92J of the Human Rights Act does have
some consequence, in that it requires the responsible Minister to report to Parliament
that the declaration has been made and the Government’s response.159
Policy considerations
[138] We agree with Ellen France J that giving a declaration of inconsistency can be
consistent with judicial function. But that does not create the jurisdiction to do so.
Ellen France J says at [41] that a declaration meets the requirements of the
International Covenant on Civil and Political Rights (ICCPR)160 to give an effective
remedy. That argument depends on the proposition that a declaration of inconsistency
is an effective remedy, a proposition that we question.

158

159

160

The Solicitor-General did not suggest any concern arose under art 9 of the Bill of Rights 1688
(Imp).
For completeness we note s 70E(7) of the New Zealand Public Health and Disability Act 2000
provides for a declaration of inconsistency in relation to (inter alia) Part 4A of that Act which does
not appear to have any legal consequences. The context of that provision is important, however,
as is apparent from its heading, which refers to precluding certain discrimination claims under the
Human Rights Act 1993, in response to the decision of the Court of Appeal in Ministry of Health
v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456. That indicates the arguably ineffective remedy
(precluding a declaration under s 92J of the Human Rights Act) for claims that were exempted
from the complete bar created by the section was intentional.
International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature
16 December 1966, entered into force 23 March 1976).

 [139] Ellen France J says a declaration is not without consequence, because it has
implications for the victim in terms of the ability to complain under the optional
protocol to the ICCPR, as Tipping J said in Moonen and in vindicating the right.161
The former seems to us to be a relatively minor consequence. A complaint could still
be made under the optional protocol if there were no stand-alone declaratory process
available: it would just mean that this “domestic remedy” would not need to be
exhausted before the complaint could be made. And, of course, Tipping J’s comment
was made in relation to an indication of inconsistency and, as mentioned above at
[125], there is no dispute about the propriety of such indications.

We accept

vindication has value but we query the extent to which a declaration provides
vindication given that a declaration binds no-one in relation to future actions and has
no impact on the victim’s position.162
Practical implications
[140] This is not a good case to decide these issues because the inconsistency is clear,
there is no attempt to justify and Parliament knew this when it passed the Act
restricting prisoner voting rights. However, it will not always be that case that there
is no contest as to inconsistency. This is illustrated by the recent decision of New
Health New Zealand Inc v South Taranaki District Council on fluoridation.163 In that
case O’Regan and Ellen France JJ concluded that the fluoridation of drinking water
engages the right conferred by s 11 of the Bill of Rights Act 1990 not to be required
to undergo medical treatment but was a justified limitation on that right and that
accordingly there was no need to resort to s 6 of the Bill of Rights Act in the
interpretation of the relevant statutory scheme. William Young J also considered that
s 6 did not apply; this on the basis that the fluoridation of water does not engage s 11.
There was thus a majority for the view that the fluoridation of water was not
inconsistent with s 11.

161
162

163

Ellen France J, above at [55] and [56], citing Moonen, above n 140, at [20].
The cases noted by Ellen France J above at n 74 refer to declarations made in relation to executive
action. There is no dispute that the court has jurisdiction to make declarations in that context and
such declarations are binding on the executive agency, unlike the declaration of inconsistency
made in this case, which has no binding effect on the legislature. The issue in those cases was
whether, as a matter of discretion, a declaration should be made rather than whether there was
jurisdiction to make one.
New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59.

 [141] In deciding whether the fluoridating of water means that consumers are
required to undergo medical treatment and, if so, whether statutory provision for
fluoridation was a justified limitation on the s 11 right, it was necessary to engage in
a process which involved:
(a)

the interpretation of s 11;

(b)

an evidence-based understanding of the way in which the fluoridation
of water impacts on dental health and any other health benefits or
disbenefits associated with drinking fluoridated water; and

(c)

in the case of O’Regan and Ellen France JJ, an overlapping evaluative
and in part factual assessment of whether fluoridation of water was a
justified limitation for the purposes of s 5.

[142] This exercise occurred in a context in which the fundamental issue was whether
the local authorities had a statutory power to fluoridate water. It was directed to “a
step in the reasoning”, that “step” being whether s 6 applied to the interpretation of the
relevant legislation. This was in the context of judicial review proceedings where the
evidence on which the case was determined was all in the form of affidavits on which
there was no cross-examination.

This meant that the exercise was reasonably

manageable. In any event, given the importance of the right to seek judicial review of
administrative action and the clear dictate of s 6, the Court had no alternative but to
carry it out. If New Health’s case had succeeded, the result would have been that the
local authorities would not have been permitted to fluoridate water which would have
been a tangible consequence of the litigation.164
[143] Let us assume that New Health had, from the outset, acknowledged that the
legislation provided for the fluoridation of drinking water and had sought only a
declaration that such fluoridation was inconsistent with s 11 of the Bill of Rights Act.
As we understand the approach of the majority in this case, New Health would have
been entitled to insist on what would have come down to a judicial inquiry into
164

Given the conclusions reached by the majority in New Health, it was not necessary for the Court
to address whether s 4 of the Bill of Rights Act could have applied in the event that New Health’s
s 5 analysis had been accepted.

 fluoridation. It is open to question whether the benefits which might flow from such
an inquiry would have warranted the considerable expenditure in money and resources
which would have been associated with it, given that the best outcome for New Health
would have been a declaration that bound no-one to act in response to it and had no
effect on anyone’s rights.
Bill of Rights Act still effective
[144] We do not think that a finding that there is currently no power to make a
declaration of inconsistency compromises the purposes of the Bill of Rights Act. We
have had the Bill of Rights Act now for 28 years and a declaration has never been
made. Indeed, until this case, there was no consensus as to whether the making of a
declaration of inconsistency was legally possible. It can hardly be said that this has
undermined the objective of the Bill of Rights Act to affirm, protect and promote
human rights and fundamental freedoms in New Zealand.
Cross-appeal
[145] In light of the conclusion of the majority that there is jurisdiction to make a
declaration of inconsistency of the kind sought by the respondents, we agree with what
Ellen France J says about the standing of Mr Taylor.165

Solicitors:
Crown Law Office, Wellington for the Appellant
Amicus Law, Auckland for Second to Fifth Respondents
Russell McVeagh, Wellington for Intervener

165

Ellen France J, above at [68]–[69].