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Declarations of Inconsistency

James Watson made this Official Information request to Ministry of Justice

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From: James Watson

Dear Ministry of Justice,

I am interested in when declarations of inconsistency (i.e. when the prospect that the courts may have the power to delcare legislation inconsistent with rights affirmed in the NZBORA 1990) was first mentioned in government (reports, emails etc). I understand that you have the ability to undertake key word searches of your system which mean this request, although broad, is not unwieldy.

Yours faithfully,

James Watson

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From: minservices
Ministry of Justice

Tena koe Mr Watson

Thank you for your Official Information Act request of 26 March 2020 asking "when declarations of inconsistency (i.e. when the prospect that the courts may have the power to declare legislation inconsistent with rights affirmed in the NZBORA 1990) was first mentioned in government (reports, emails etc)."

A declaration of inconsistency is a formal statement by a court or tribunal that an enactment is inconsistent with a plaintiff’s fundamental human rights protected by the Bill of Rights Act. A declaration does not affect the validity of an Act, or anything done lawfully under that Act. However, it does signal that the court or tribunal considers an Act to infringe fundamental human rights in a way that cannot be justified in a free and democratic society. I note that the Human Rights Act 1993 empowers the Human Rights Review Tribunal to declare an Act to be inconsistent with the right to be free from discrimination affirmed in section 19 of the Bill of Rights. The question of whether the senior courts can issue declarations of inconsistency with NZBORA was a matter of debate for several years before it was settled by the Supreme Court in the Taylor case. While I can point you to the provision in the Human Rights Act, I am not able to identify when a declaration was first mentioned in government reports.

The Ministry of Justice only holds its own information and does not hold information for other government agencies and particularly the courts, which are not subject to the Official Information Act. We also do not have a centralised database of all information and are unable to do the key word searches across multiple Ministry systems in the way that you have suggested. On this basis, I must refuse your request under section 18(f) of the Act on the grounds it would involve substantial research.

I would, however, recommend you consult with leading public and constitutional law specialists on this question.

If you are not satisfied with my response, you have the right to complain to the Ombudsman under section 28(3) of the Act. The Ombudsman may be contacted by email at [email address]

Nga mihi

Caroline Greaney
General Manager, Civil & Constitutional
Policy Group
Ministry of Justice | Tâhû o te Ture

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