New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 (Act) passed its third reading and received Royal assent on 29 August 2022 to become law.
The Act (as enacted) is now in force and provides a process for the Government and House of Representatives to respond to a declaration of inconsistency under the New Zealand Bill of Rights Act.
A ‘declaration of inconsistency’ is a formal statement by a court or tribunal that an Act is inconsistent with fundamental human rights protected by the New Zealand 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.
The Act amends the New Zealand Bill of Rights Act to:
- require the Attorney-General to notify the House of Representatives of the court’s declaration of inconsistency within six sitting days after the declaration becomes final; and
- require the Minister responsible to present the Government response within six months of the Attorney-General notifying the House.
The Act does not explicitly set out the process for Parliament to respond to declarations of inconsistency. Instead, the Attorney-General notifying the House of the declaration “would trigger a parliamentary process under its standing orders.” The parliamentary process would involve:
- a declaration of inconsistency being referred to a select committee allocated by the Clerk of the House;
- select committee consideration of and reporting on the declaration within four months; and
- debate in the House on the declaration, the select committee report, and the Government’s response to the declaration.
The Act also amends the Human Rights Act 1993, 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.
For further information, please contact a member of our Public Law team.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.