Hon Andrew Little
Minister of Justice

The law setting out New Zealanders’ basic civil and human rights is today one step towards being strengthened following the first reading of a Bill that requires Parliament to take action if a court says a statute undermines those rights.

At present, a senior court can issue a ‘declaration of inconsistency,’ meaning an Act is inconsistent with fundamental human rights protected by the New Zealand Bill of Rights Act. But the declaration will not affect the validity of the Act, or anything done lawfully under that Act. It merely signals that the court considers an Act to infringe fundamental human rights in a way that cannot be justified in a free and democratic society.

“Parliament sometimes passes laws that cut across our rights in the Bill of Rights Act, and sometimes does so knowingly,” Justice Minister Andrew Little said.

“Parliament is free to do this – because sovereignty of Parliament means it can – but if it does so, and causes harm, a citizen who successfully shows this in court should be able to cause Parliament to re-think its decisions.

“When the senior courts make such declarations of inconsistency, there is currently no mechanism to bring the matter to the attention of the House of Representatives, and for Parliament to account for its decision to allow human rights to be breached.

“Today’s Bill amends the New Zealand Bill of Rights Act to require the Attorney-General to present a court’s declaration to Parliament within six sitting days after the declaration becomes final. This will enable Parliament to consider whether it wishes to repeal, amend, or affirm the provision in question.

“The Bill does not set out the process for Parliament to respond to declarations of inconsistency,” Andrew Little said. “Instead, how Parliament responds will be left for it to determine under its Standing Orders.

“For example, when the Attorney-General presents a report under section 7 of the New Zealand Bill of Rights Act that a Bill is inconsistent with that Act, Standing Orders require that a report be referred to a select committee for consideration. The Bill envisages a similar “automatic” process when the Executive draws a declaration of inconsistency by the senior courts to the attention of the House of Representatives,” Andrew Little said.

The Human Rights Act 1993 will also be amended so the response to a declaration of inconsistency by the Human Rights Review Tribunal is the same as the response to a declaration under the Bill of Rights Act.

The Bill has been referred to the Privileges Committee for consideration.

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